Employers’ Usual Rules Apply to National General Strikers

Feb. 17 work stoppage has been called to protest Trump administration policies

Allen Smith, J.D. By Allen Smith, J.D. February 16, 2017
Employers’ Usual Rules Apply to National General Strikers

​Businesses can enforce their typical absence rules if their workers participate in the Feb. 17 National General Strike, experts say, but should exercise caution in those rare circumstances where participation constitutes protected concerted activity.

Strike4Democracy is coordinating more than 100 strikes across the United States on Feb. 17 to protest Immigration and Customs Enforcement raids; travel bans; Trump's mobilization on the border wall; and policies on the rights of workers, women, people of color, the lesbian, gay, bisexual, transgender and queer (and/or questioning) community, the repeal of the Affordable Care Act (ACA), and the environment. There also are strikes on Feb. 16 to note what a day without immigrants would look like. And a March 8 strike will be for a day without women in the workplace.

Treat the absences the same as they would be handled in any other circumstance, recommended Thornell Williams Jr., an attorney with Ogletree Deakins. Find out why the employee is absent. If he or she calls and says he or she is sick, treat it like an illness under the attendance policy and ask for a doctor's note if that is your usual practice, he said. If the employee doesn't call and doesn't show up, a no-call, no-show-up policy would apply, if you have one.

Asking Why the Employee Protested

Different attorneys have different ideas about whether employers should ask employees why they took part in the strike. Only if an employee admits he or she skipped work to participate in the protest should an employer ask about the specific issues the employee was protesting, Williams said. After the employer has gotten the details, it should make a case-by-case determination if those reasons might be protected by the National Labor Relations Act (NLRA), he said. Unless the employee points back to a workplace issue that the employer arguably has control over, the protest won't be a protected absence.

However, Steve Miller, an attorney with Fisher Phillips in Chicago, said employers shouldn't quiz employees about why they protested. If employees volunteer it, that's fine. But employers "could be going down a road they do not necessarily want to by asking why." If an employee says he or she was protesting putting up a wall between the United States and Mexico and a supervisor responds "we need to do something about immigration," a disciplined employee might later claim national origin discrimination.

A handful of states, including California, prohibit discrimination against individuals for political activities, he added.

NLRA Protected Absence

What might be a protected absence under the NLRA? Suppose an employer was in Silicon Valley, Calif., where there is a high concentration of foreign nationals working in the United States. If employees protested the change in immigration policies and urged a large company to put pressure on the Trump administration to switch its policies, there might be concerted activity protected by the NLRA. In most cases though, the protests won't constitute such activity, Williams said.

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But Amber Spataro, an attorney with Littler in Newark, N.J., said the current NLRB probably would find that the protests are protected concerted activity. "While many employers offered health insurance to full-time employees before the ACA—and would continue to do so even after its repeal—the board would likely find that the issue is sufficiently related to terms and conditions of employment to be protected by the NLRA."

She added, nevertheless, that a strike as a means to engage in protected activity likely would not be permissible in these circumstances and the employer would be entitled to discipline in accordance with its normal neutral work rules.

And Steven Wheeless, an attorney with Steptoe & Johnson in Phoenix, said that whether the strike is protected concerted activity "ultimately depends on employee-specific facts and whether the hold-over Obama board or the incoming Trump board reviewed the issue."

He noted, "The National Labor Relations Act does not protect purely political advocacy." However, the line between political advocacy and strikes for different terms and conditions of employment can blur easily depending on the subject matter.

"Here, if an employee walked off the job to join the national general strike in support of its stated objectives—which are all very specifically anti-Trump and purely political—the NLRA would likely not protect that work stoppage," he stated. "However, if the employee said that he or she was joining with other striking employees—even from other employers—to protest Trump's failure to immediately revoke NAFTA [the North American Free Trade Agreement] because that failure negatively impacts job security, the act would likely apply and protect the work stoppage."

He added, "This area of the law remains exceedingly gray."

If the employees are unionized and there is a no-strike clause in the collective bargaining agreement (CBA), the employer could seek remedies under the CBA and impose discipline consistent with the specific terms of the CBA and past practice, noted Michael Lotito, an attorney with Littler and co-chair of the Workplace Policy Institute, the firm's government affairs branch.

But remember that all employees have Section 7 rights guaranteeing protected concerted activity under the NLRA—not just unionized employees, said Tom Luetkemeyer, an attorney with Hinshaw and Culbertson in Chicago.

No Advance Warning but Have Contingency Plan

Williams doesn't recommend warning employees that if they skip work the absence may not be protected, saying that in a union environment, a warning increases the chances that employees will provide scripted answers about why they were absent and makes it likelier that the absence is protected.

But have a contingency plan in place so operations are not disrupted regardless of whether employees are disciplined for participating in the protests, he added. Whether that's an on-call list, temporary employees, a roster of part-timers waiting to see if they can have extra hours or a third-party leased labor provider, employers should be ready for the protest, Williams recommended.

Keeping track of employees' actions is reasonable, as at some point an employer may want to discipline an employee for multiple walk-outs on the grounds that this is "intermittent" and unprotected striking, said Brian Bulger, an attorney with Cozen O'Connor in Chicago.

"Even though an argument can be made that this strike is political, and not protected concerted activity, I think the big picture for employers is to decide whether they want to try to work around this issue, in the expectation that disruptions may not be terrible, or to discipline employees and run the risks of legal battles and expenses," he said. He added that he comes down "on the side of the former, but there is plenty of room for disagreement."

Some may think the protests are a "get-out-of jail-free card to skip out," Williams noted, adding, "That's not the case."

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