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:
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.
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