Quite a few news reports discuss recent employee walkouts across the country in protest of federal policies, such as the recent “Day Without Immigrants” protests.
Employers are obviously concerned about how these protests might affect their business operations and what they should do. Employers want to be able to ensure productivity and maintain attendance policies. The situation can be tough to navigate.
Despite these legitimate concerns, employers should exercise caution before taking disciplinary action against an employee who fails to show up to work because of a protest. In some, but not all, circumstances, the employee’s behavior may be legally protected.
If you have concerns that employee walkouts will disrupt your ability to operate, the best course of action is to seek advice of counsel.
The National Labor Relations Act (NLRA) protects the rights of employees to engage in “protected concerted activity,” which the National Labor Relations Board (NLRB) generally defines as two or more employees taking action relating to terms and conditions of employment for their mutual aid or protection (Sections 7, 8(a)(1)). This right applies to both union and nonunion employees. In fact, the NLRB often enforces this right in nonunionized settings.
In some circumstances, when employees get together to specifically protest working conditions or job issues, such as wages, the NLRA protects those activities. For example, protests for a higher minimum wage are related to improving the employees’ working conditions and may be entitled to NLRA protection.
In other circumstances, the question is more difficult. Not all protests zero in on a specific issue of improving workplace conditions. If workers walk off the job to participate in a general rally opposing the current administration, it’s less likely they are organizing to improve working conditions. NLRA protections might not apply to the employees’ behavior.
It’s not going to be easy for an employer to make a split-second decision as to whether the workers’ activity is protected. Caution on the employer’s part and consultation with counsel is warranted before taking any disciplinary action. Also, blanket statements that the employees cannot participate without jeopardizing their jobs may not pass legal muster.
Loss of Protections
Employees can lose any protections to which they are entitled. For instance, the NLRA does not protect employees who engage in certain acts of misconduct, such as planning the destruction of property or threatening or engaging in violence.
Employees also may lose protection for reoccurring walkouts. Workers who strike multiple times, especially in the same labor dispute, can lose the NLRA’s protections and face discipline or termination. The NLRB, in some situations, has found that intermittent strikes are not protected.
Slowdowns, where the workers stay at work but don’t do anything, also may be unprotected.
California provides several protections against immigration-related discrimination and retaliation, laws that are stronger than even federal protections. Both California and federal laws also protect workers from national origin discrimination. These laws may come into play with protests or walkouts.
In California, all individuals, regardless of immigration status, who applied for employment or were employed in the state are entitled to all protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law.
This includes state labor, employment, civil rights and employee-housing laws. You cannot inquire about a person’s immigration status except when necessary by clear and convincing evidence to comply with federal immigration law. These laws are found in several overlapping California statutes (Civil Code Section 3339; Labor Code Section 1171.5; Health and Safety Code Section 24000; Government Code Section 7285).
California also has strong protections for immigrant workers who complain about unfair wages or working conditions (Labor Code Section 1019). For instance, an employer may not threaten to contact, or contact, immigration authorities because an employee complained that he/she was not paid minimum wage.
Critically, it’s unlawful in California to report or threaten to report the suspected citizenship or immigration status of an employee, former employee, prospective employee or a member of the employee’s family because that person exercised a right under the Labor Code, Government Code or Civil Code (Labor Code Section 244). This is a broader protection than just protecting complaints about wages and hours; it also covers other rights, such as bringing a discrimination or harassment complaint under the Government Code.
If you are affected by walkout activity, keep the following in mind:
• Plan ahead if you know that employees are going to engage in walkouts.
• Don’t automatically take disciplinary action or threaten disciplinary action without legal consultation.
• Apply company policy consistently and fairly.
• Train managers and supervisors to be mindful of employee protection issues.
• Never ask employees to reverify their eligibility to work (by completing a new Form I-9) simply because the employees are involved in political activity relating to immigration issues or because the employer is now suspicious that the employee is undocumented. The Form I-9 should have been completed at the time of hire.
• Remember that lawful off-duty activity also is protected under Labor Code Section 96(k).