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Labor attorneys are divided over whether International Workers’ Day strike is protected concerted activity
The general strikes that have been announced for May 1—May Day, otherwise known as International Workers' Day—are more likely to be protected concerted activity covered by the National Labor Relations Act (NLRA) than were the February "Day Without Immigrants" protests, according to Jacob Monty, an attorney with Monty & Ramirez in Houston.
In February, employers could have argued that the protests were not concerted activity, Monty said. But May Day is a traditional labor rights day and is concerted activity "any way you look at it," he stated. However, other labor attorneys say that whether May Day protests are covered by the NLRA is debatable.
On May 1, 300,000 restaurant workers and 40,000 unionized service workers plan to strike, said Michael VanDervort, executive director of Cue, a labor relations consulting firm in Atlanta. Labor leaders are hoping to make this the largest general strike in the United States since the first Day Without an Immigrant protests in 2006, when reportedly more than a million employees stayed away from work, he added. Groups supporting the May Day protests this year include the Service Employees International Union and several worker groups, including the Restaurant Opportunities Centers United, Fight for $15 and Food Chain Workers Alliance.
Nurse unions in Minnesota, Philadelphia and Seattle also are participating in the protests, said Kevin McCormick, an attorney with Whiteford Taylor Preston in Baltimore. A walkout at hospitals could pose problems but discharging employees for missing a day while they protest could lead to being mired in litigation with the National Labor Relations Board (NLRB), he said.
To the extent possible, employers should address any absences on May 1 the same as they would address any other absences, noted Christine Walters, J.D., SHRM-SCP, independent consultant and author with FiveL Company in Westminster, Md. "Just as generally we don't ask for more detail when an employee tells us he is out sick for one day, if an employee calls out for personal reasons, we need not ask 'Why?' " she said. "Does it really matter the reason—whether the employee's basement flooded, the cat died or they want to join a Rise Up march?" Rise Up is helping organize the May Day protests.
'Debatable' Whether Protest Participation Covered by NLRA
"The general question here is whether an employee participating in such a general work stoppage is engaging in protected concerted activity under the act, which would make missing work on May 1 permissible under the law," VanDervort said. "The problem is that each case is situational and may have different outcomes based on the facts."
"It is debatable whether participation in May Day protests that are not specifically directed at an employer should or would be considered protected concerted activity under the NLRA," said Tony Byergo, an attorney with Ogletree Deakins in Seattle. But he added that the NLRB "has historically interpreted protected concerted activity broadly and has extended it to include protests to influence legislation, such as increases in minimum wage and immigration reform, that have a nexus with the employment relationship."
"Typically, generic protests expressing a point of view on a public-policy issue do not warrant NLRA coverage," said Michael Lotito, an attorney with Littler in San Francisco and co-chair of the firm's government affairs branch, the Workplace Policy Institute. "But, in contrast, if the protest was tied to, say, the harassment of immigrant workers by a manager, the NLRA may well come into play. Each situation needs to be evaluated on its own merits."
Daniel O'Meara, an attorney at Montgomery McCracken Walker & Rhoads in Berwyn, Pa., said that mere political protests of immigration policies are not covered by the NLRA. He recalled greenlighting one employer's discharge of a worker who staffed the front desk of an apartment building. She saw a protest go by and abandoned work to participate. "Adverse actions can be taken. She was on final warning and thought that since it was a political protest she couldn't be disciplined," he said.
[SHRM members-only HR Q&A: Are all types of strikes protected under the NLRA?]
Employers should exercise restraint in statements made or actions taken in response to employee participation in the protests though, particularly if the employee is off duty and in nonwork areas, Byergo said.
Cases of discharge for not showing up to work on May Day would be given priority at the NLRB, Monty noted. "Discipline is still prohibited but is less risky," he said.
In addition to risking negative public opinion and potential legal liability, employers need to balance any inconvenience from employees participating in the protests against morale concerns if the employer chooses to discipline people for participating, said Alice Kilborn, Esq., SHRM-CP, founder of Kilborn Consulting in Albuquerque, N.M. "May 1 is one day out of 365," she noted.
That said, there may be other periodic protests, as "the resistance to President Trump is not going away," said Rick Wartzman, senior advisor to the Drucker Institute at Claremont Graduate University in Claremont, Calif.
In February, many employers decided that the best approach was to support their employees in the protests, even to the point of shutting down for the day, Byergo noted. Facebook has announced it won't discipline workers who participate in the protests and will look into whether its vendors have broken the law by disciplining employees who strike. A thoughtful approach that is sensitive to employees "may override the technical, legal question of whether disciplinary action may be taken," he said.
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