May 30, 2020, Looters break the window of an Adidas store in Manhattan during riots over the death of George Floyd. Photo: Ryland West/ALM

In-house counsel need to consider the safety of their employees as protests break out over the death of George Floyd, an unarmed black man, who was killed in Minneapolis last month by police officer Derek Chauvin while three other officers watched.

Todd Logsdon, a partner at Fisher & Phillips and co-chair of the firm's workplace safety practice group in Louisville, Kentucky, said in an interview that companies with retail locations that have been looted could be liable under the general duty clause of the Occupational Safety and Health Act.

"That is the catchall in the OSHA Act that says employers have to provide a safe workplace which is free from recognized hazards," Logsdon said.

He explained the general duty clause of OSHA has been used with varying degrees of success over the years for workplace violence issues but said it could come up in these cases if an employee is hurt.

Further, in-house counsel should be cognizant that if any employees get hurt during the civil unrest, there will also be workers' compensation claims they will have to contend with.

Most stores are closing at nighttime when the majority of looting appears to be happening, and that will likely save stores from workers' compensation lawsuits, Logsdon said.

"If a retail establishment is in the area where they know a protest is going to take place it is important to shut down before that happens," Logsdon said.

Most states have an avenue for injured employees to pursue litigation after making a workers' compensation claim, Logsdon said. Especially if companies are expecting their employees to defend those stores. However, he said he has not seen companies expect employees to stand in the defense of company property during protests.

Many of the national companies that were looted over the weekend have temporarily closed some or all of their stores.

Minneapolis-based Target Corp. did not make general counsel Don Liu available for an interview. However, a spokesperson pointed Corporate Counsel to a statement CEO Brian Cornell made online. He said the company is working with its displaced employees to make sure they have full pay and benefits in the coming weeks.

Target has closed certain stores across the country, including those in Minneapolis, California, Illinois, Philadelphia and Atlanta.

"In any of our other locations that are damaged or at risk, the safety and well-being of our team, guests and the surrounding community will continue to be our paramount priority," Cornell wrote.

Seattle-based Nordstrom also announced that operations at all of its stores in the U.S. will be temporarily suspended for the coming weeks. A spokesperson for the company did not make general counsel Ann Munson Steines available for comment. The company said in a statement posted to its website that the safety of its employees is paramount.

"Thankfully, none of our employees were injured in these events, and we're communicating regularly with all of them on the actions we're taking and the ways we will continue to support them," the company said in a statement. "We'll also pay employees for any shifts they may have missed as a result of these unexpected closures."

Other companies that had stores damaged from looting include CVS Health, Walmart Inc., Macy's Inc. and Apple Inc. Spokespeople for those companies did not respond to requests for comment Tuesday.