Prepare for Strikes—and Know When They May Be Unlawful

​Strikes are ubiquitous these days, and employers should be prepared for them with contingency plans. Employers should know, though, that the National Labor Relations Act (NLRA) limits when private employees may strike. Other laws prohibit some public employees, such as federal workers, from striking.

"For private entities, strikes practically never happen out of the blue," said Amber Rogers, an attorney with Hunton Andrews Kurth in Dallas and Houston. "This is because employees do not have an absolute right to strike."

The most common situation for employees to lawfully strike is when an employer and a union can't agree on the terms of a collective bargaining agreement, which often results in a so-called economic strike, Rogers said. Another common scenario for a lawful strike is an unfair labor practice strike.

Limitations on the right to strike also depend on a strike's purpose, tactics used in the strike and timing. The threat of strikes is greater at private entities than public ones.

Private entities are "vulnerable to strikes and should have a plan for if and when they are involved," Rogers said. Many collective bargaining agreements must be renegotiated in 2023, she noted, which is apparent in the automotive, entertainment and health care industries.

A dozen states permit state employees to strike, although with some limitations.

Strike Contingency Plan for Employers

When a strike is on the horizon, employers—private or public—should develop a strike contingency plan to keep operations going, said Molly Kaban, an attorney with Hanson Bridgett in San Francisco.

She said some steps that employers should consider are to:

• Make arrangements for replacement workers, if necessary, and identify a safe entrance for them.
• Notify customers and vendors about possible disruptions and identify a neutral gate for their entering and exiting.
• Beef up security and notify law enforcement.
• Consult with legal to develop communications to employees.

"If a strike truly would endanger public health and safety, you should consider legal action," Kaban explained. "Otherwise, make sure you have all the steps in place that are necessary to keep your operations afloat."

Employers facing a strike often continue operations with supervisory employees, who aren't in bargaining units, and crossovers—employees who are in the bargaining unit but wish to cross the picket line and work, said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis.

Private-sector employers have the right to replace strikers temporarily or permanently, he noted. He added, in the case of an unfair labor practices strike, any replacements must be temporary. If a striker is temporarily replaced, they must be reinstated upon their unconditional offer to return to work. If a striker is permanently replaced, they must be placed on a preferential hiring list upon their unconditional offer to return to work, Pryzbylski explained.

Strike Prohibitions Among Private Employees

A strike in support of a union unfair labor practice, or one that would cause an employer to commit an unfair labor practice, may be a strike for an unlawful purpose.

In addition, a strike that violates a no-strike provision of a contract is not protected by the act. A sitdown strike, when employees stay in the plant and refuse to work, also is not protected.

The NLRA prohibits a union from striking at any health care institution without first giving at least 10 days' written notice to the institution and the Federal Mediation and Conciliation Service.

Strike Prohibitions Among Federal Employees

Federal employees have been legally prohibited from striking since the Taft-Hartley Act, Rogers said. The intent is to prevent workers in the federal public sector from leveraging a work stoppage that could damage the U.S. government. The Civil Service Reform Act further prohibits employees of the U.S. government from participating in a strike, asserting the right to strike or belonging to a union that asserts the right to strike.

"The threat of a strike at the federal level is largely nonexistent," Rogers added. The most recent example happened in 1981, when approximately 13,000 air-traffic controllers went on strike after negotiations between the Professional Air Traffic Controllers Organization and the Federal Aviation Administration broke down.

President Ronald Reagan declared the strike a "peril to national safety" and ordered the air-traffic controllers back to work. He then fired approximately 11,000 of them and barred them from ever working for the federal government again.

"Since then, there has not been a strike at the federal level," Rogers said.

Strike Prohibitions and Limitations Among State Employees

Most states take the federal government's position and outlaw strikes among state employees, Rogers said.

However, approximately a dozen states have enacted laws giving public-sector state workers some strike rights. These states include Alaska, California, Colorado, Hawaii, Illinois, Louisiana, Minnesota, Montana, Ohio, Oregon, Pennsylvania and Vermont, according to Tanner and Associates.

In California, strikes by public employees aren't unlawful unless they clearly create a substantial and imminent threat to public health or safety, Kaban said. Such a threat has been determined to always be the case for public-sector firefighters and police officers in the state, so they can't lawfully strike. Whether other types of employees meet this standard has been the subject of litigation, she said.

In Pennsylvania, strikes by correctional officers and guards at prisons or mental hospitals or employees necessary to the function of the commonwealth's courts are prohibited, said Melissa Atkins, an attorney with Obermayer in Philadelphia.

Despite strikes being illegal in most states for state employees, there have been some unlawful strikes, Rogers said. "Most of these strikes result in shutdowns. One example is the Mississippi bus drivers, wherein school bus drivers stopped working for two days," she said. "They did this in 2021 and without regard to Mississippi law prohibiting school workers from striking."

Alex Volberding, an attorney with Liebert Cassidy Whitmore in Los Angeles, said that in California, public employees are subject to different governing collective bargaining statutes:

• The Dills Act for state employees.
• The Educational Employment Relations Act for public K-12 and community college districts.
• The Higher Education Employer-Employee Relations Act for institutes of higher education, such as the University of California system and the California State University system.
• The Meyers-Milias-Brown Act for cities, counties and special districts.

"In California, public employees that strike before exhausting impasse resolution procedures create a rebuttable presumption of bad faith, but it is not per se unlawful," Kaban said.