Political activists are calling for women to stay home from work on March 8 as part of “A Day Without A Woman” general strike.
The “one-day demonstration of economic solidarity” comes three weeks after a similar “Day Without Immigrants” caused thousands of people to remain out of work or to close their small businesses to protest Trump Administration policies on immigration. Some employers supported the walkout but at least 100 employees around the country who took part in the job action were fired.
Associated Industries of Massachusetts has taken no position on A Day Without a Woman, but since these strikes are expected to continue, the association believes it should help employers prepare to respond.
There are more questions than answers at this point, so our suggestion to employers is to proceed cautiously in dealing with employees who participate in the strike.
Issues to consider include:
- Do employees have a legally protected right to skip work to protest or to support a political cause? If not, may an employer discipline employees who participate?
- Are these employees on strike as defined under the National Labor Relations Act (NLRA), making it concerted - and thus legally protected - activity?
- Does disciplinary action against immigrant employees equate to national-origin discrimination under federal and state law?
- What, if anything, can an employer do to prevent employees from walking out?
- How far may an employer go in monitoring employee political activities on/off the job?
- May an employer terminate an employee for social media posts or for joining political groups?
- Are there different rules for management versus non-management employees?
- May employee use Paid Time Off or earned sick time to participate in the protest?
- What constitutes reasonable advance notice for employees seeking to use Paid Time Off, vacation time or sick time?
The ability of employers to respond to workers who miss work to join political protests revolves largely around interpretation of the National Labor Relations Act (NLRA).
The act extends legal protections to non-union employees joining together to achieve a common end. So employers covered by the NLRA (i.e. nearly all employers in the U.S.) who take disciplinary action against employees for participating in a demonstration may expose themselves to a legal challenge.
The impact of losing an unfair labor practice case can be far reaching and expensive. It can also, in the extreme, result in a union being awarded representation even in the absence of an election.
Although disciplining an employee who doesn’t work a scheduled shift may be appropriate, employers need to make certain that it is consistent with company policies and practices and not impacted by the politics of the issue.
“The answer is somewhat murky,” says Charlotte Garden, an associate professor at the Seattle University School of Law in The Atlantic Magazine.
“The National Labor Relations Act protects workers’ rights to engage in concerted activity for mutual aid or protection, and the scope of what falls under that umbrella is quite broad. So it is likely that some forms of worker protest about the likely effects of Trump Administration policies on immigrant workers would be protected. But that protection would not necessarily include every tactic that workers might use.”
Are your hands completely tied? No.
Employers still have the right to enforce their existing attendance and notification policies. If someone fails to appear for work and does not to comply with the attendance policy, employers may take appropriate disciplinary action. Just be sure to avoid any possible action that may be construed as disparate treatment against one or more employees based on their legally protected status.
Employers should carefully review their attendance policy and determine if it achieves its intended purposes. Also, does the management team currently enforce the attendance policy as written? If not, it may be time to update and correct the practice and make sure all employees are aware of the policy.
Please contact the AIM Employer Hotline at 800-470-6277 if you have questions.