Expect More Pay Protests Leading Up to Election

By Allen Smith Nov 9, 2015
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​The Fight for $15 protests in 500 cities on Nov. 9, 2015, aren’t confined anymore to the fast-food industry, noted Steven Bernstein, an attorney with Fisher & Phillips in Tampa, Fla., who indicated that it’s imperative that managers don’t overreact.

“They are part of a broader initiative by unions. Some will target retailers during the holiday season,” he predicted. Other targeted industries include child care, home health, convenience stores and academia, Bernstein observed.

Strikes in 270 cities continue to target fast-food restaurants, however—the original target of the periodic Fight for $15 strikes that originated three years ago.

But the strikes this time will culminate in protests outside 500 city halls one year from Election Day and will be more inclusive. In addition, auto parts workers, farmworkers, grocery clerks, package delivery drivers, nursing home workers and others will show their support for the Fight for $15 at hundreds of additional rallies across the country.

The protests are being billed by organizers as a way to engage the roughly 64 million Americans, or 46 percent of the workforce being paid less than $15 per hour.

“The Fight for $15 [movement] has shown it can influence the politics around wages and the economy,” said Neera Tanden, president of the Center for American Progress, a progressive think tank, in a release. “This movement is creating a new voting bloc that frankly has too often been ignored by the political process.”

At the local level, the protests have enjoyed some success, as cities such as Los Angeles and New York City have enacted laws to eventually raise pay to $15 per hour. And the Democratic National Committee voted in August to make $15 an hour an official part of its 2016 platform.

Employers have voiced their concerns about raised minimum wages, however. Eric Oppenheim, SHRM-SCP, chief operating officer of Republic Foods Inc. in Rockville, Md., which runs several Burger King restaurants, and a member of the SHRM Labor Relations Special Expertise Panel, said forced higher wages could lead to:

  • Reduction in staff.

  • Increase in prices.

  • Closing of businesses.

Provocations

How the protests play out at the local level depends partly on how managers react to them.

Managers need to step away from the temptation to threaten workers participating in the protests with discipline or discharge, Bernstein said. Managers instead should focus on the business and not let emotions get the better of them, he cautioned.

Bernstein expects protesters to provoke managers by walking off the job en masse.

Protesters have the right to persuade someone to join their protest without the person clocking out, telling the manager or getting anyone to fill in. If the manager seeks to discipline or discharge that person, the manager risks violating the National Labor Relations Act (NLRA), Bernstein said. And if it violates the NLRA, an employer would have to pay the person back pay and reinstate him or her with a notice that it had violated the law potentially having to be distributed nationwide.

Employers do have some rights though. An employee would not have the right to engage in a sit-down strike, impede access into or out of the facility, or obstruct work production, Bernstein added.

Employers that are nimble enough may permanently replace strikers, even though discharge and discipline aren’t allowed. That’s what happened with air traffic controllers during President Ronald Reagan’s administration, Bernstein noted. But he said the more prudent route is to temporarily replace the workers.

Social Media

Managers need to be trained to be careful not only during the protests, but when it comes to any reaction to the protests on social media.

If colleagues join employees in saying they like the protest, it would be tempting for businesses to assume the workers have crossed a line. But the National Labor Relations Board (NLRB) does not see it that way, Bernstein observed.

And courts are agreeing with the NLRB. A recent 2nd U.S. Circuit Court of Appeals decision sided with an employee for using the “like” button in response to another employee’s critical posting about the employer, concluding that "liking" was protected, concerted activity.

Online protests can go viral, Bernstein said, noting that “the right of employees doesn’t stop the minute they leave a facility” but instead lives on in the world of social media.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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