In certain instances, employers can prohibit workers from taking part in political events during work hours. But some absences cannot be denied.
You can enforce uniformly applied policies regarding requests for time off as well as neutral rules regarding no-call/no-show absences. But the National Labor Relations Act—which covers most private-sector employees, including union and nonunion workers—gives employees the right to engage in protected and concerted activities related to working conditions without fear of discipline.
So in order for a worker’s political advocacy to qualify as a protected activity, it must have a direct connection to working conditions, according to guidance from the National Labor Relations Board (NLRB). Political protests regarding minimum-wage increases or the repeal of the Affordable Care Act may fall into this category, for example.
While such absences may resemble strikes, the board concluded that they are distinctly different. According to the NLRB guidance, “When employees leave work in support of a political cause, either to mobilize public sentiment or to urge governmental action (in either case a matter outside their employer’s control), they are not withholding their services as an economic weapon in the employment relationship”
When politically motivated absences do occur, consider the context. An employee who calls out sick to protest in a state that requires companies to provide sick leave is likely protected. In that case, you may be prohibited from denying the day off or from requiring documentation for the absence and disciplining the worker for missing work. In a union setting, the collective bargaining agreement may have “no strike” language broad enough to cover politically motivated absences. In such cases, you can follow the terms of the agreement regarding discipline.
But make sure to consider the impact your response may have on employee relations. You might be more inclined to show leniency if just a few employees request the day off to attend a political march as opposed to almost everyone skipping a day in protest, since business is certain to be impeded in the latter case. Be prepared with a plan to cover operations in any event.
Given the gray nature of the subject, it’s a good idea to consult with legal counsel to minimize the risk of violating an employee’s protected rights.
Theresa Adams, SHRM-SCP, is an HR Knowledge Advisor for the Society for Human Resource Management.
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