A NATIONAL “GENERAL STRIKE?” (What You As An Employer Need To Know)
Posted: February 16, 2017
The Trump Administration has seen resistance and anger from the political left. Various progressive organizations have recently called for a nation-wide “strike” of all workers across the country as a show of political solidarity against the Trump Administration’s executive orders and positions on a vast array of political issues such as immigration, repeal of the PPACA, the roll-back of regulations, etc.
As an employer, you should know that the National Labor Relations Act (NLRA) generally permits employees the right to strike so long as the activity concerns terms and conditions of employment. Here, the call to action appears to be blatantly political. Nevertheless, it is a safe bet that the National Labor Relations Board (NLRB) would take the position that some elements of the protest concern terms and conditions of employment, most particularly, repeal of Obama Care. The legal question thus becomes whether or not an employee who fails to show up for work this Friday to participate in the national boycott can be disciplined by their employer.
A Guideline Memorandum from the General Counsel to the NLRB issued in 2008 speaks directly to this issue. There, the General Counsel stated that even where certain political advocacy (like protesting) may be protected activity under the NLRA, employee conduct may not rise to the level of a protected “strike.” While employees off duty cannot be disciplined for participating in the political activity, “economic pressure in support of a political dispute (i.e., refusing to work) may not be protected when it is exerted on an employer with no control over the outcome of that dispute.” In particular, the General Counsel stated that “leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern may also be subject to restrictions imposed by lawful and neutrally-applied work rules.”
This essentially means that, while an employee’s decision to engage in the political activity called for by progressive groups this Friday may constitute protected activity under the NLRA, employers still have a right to uniformly apply their standard, non-discriminatory attendance rules to any employees who would otherwise be working that day. Stated differently, an employee who refuses to work on Friday in order to engage in the nation-wide “strike” can still be charged with an unexcused absence by his/her employer, and thus possibly disciplined, in accordance with the employer’s legal, uniformly applied work rules.
With this is mind, we offer the following guidance:
Supervisors should be made aware of the national strike set for this Friday so that they might monitor any traction it may garner within the employee group they supervise. In other words, you will want to have a handle on whether or not your company can expect to have a substantial loss of manpower for this Friday. You may need to prepare for alternative sources of labor.
Make sure supervisors and human resource professionals are fully familiar with your company’s stated attendance policy. Under the General Counsel’s 2008 Memorandum, your company has every right to insist upon application of that policy to any employee who may request to leave that day or who simply does not show up for work that day.
Apply your policy to the circumstances. If an employee requests this Friday off because they “feel the flu coming on,” you should follow the company’s ordinary course of action under its policies. If that includes requiring a doctor’s slip to excuse the absence, then you should follow that policy. If your company simply “takes the employee’s word for it,” then this is not the time to start asking for a doctor’s verification or some other new wrinkle to the policy. Likewise, if employees have an allotment of “personal days” to use as they deem fit, you should allow them the day off without any discipline consistent with the policy. On the other hand, if the only reason under your company’s policies for legitimate absence from work is for scheduled vacation and unplanned sickness, you may discipline any employee who fails to come to work that day due to their participating in the national boycott. Similarly, if an employee says they are taking the day off due to sickness, but you later learn that they were not sick at all, you may take action for dishonesty/fraud in the same fashion you would under any other fraudulent circumstances for leave.
If an employee informs your company that they intend to take the day off in solidarity with the general strike, you should not ask any particular questions about it. You should inform the employee that their absence will be assessed under the company’s standard attendance-related policies.
If your company is unionized and any employee covered under a collective bargaining agreement fails to come to work in order to participate in the boycott, you will want to review your union collective bargaining agreement to see whether a no strike clause exists. While the General Counsel’s 2008 Memorandum seems to indicate that boycotts of this sort do not fall within the typical “strike” analysis, any no strike language in your contract could be of additional support for the company’s position that discipline is appropriate.
If your operations include facilities outside of the State of Michigan, you will want to check your state laws to see whether or not any sick leave or other statutes exist which might implicate discipline. For example, if a state law concerning sick leave exists which prohibits an employer from disciplining employees for taking sick leave and/or prohibits an employer from requesting verification as to sick leave, you will obviously need to continue to adhere to any such state laws. If you would like our office to make an assessment of any such state laws, please contact us at your earliest convenience.
Finally, if your company finds itself in a situation where an employee will be fired due to their absence from work to participate in the national boycott, you should call us for a specific assessment of the circumstances.
Please feel free to contact any of the attorneys of Masud Labor Law Group with regard to how this call for a nation-wide strike may impact your business.