This week, an activist group calling itself “Strike4Democracy” has called for a day of “coordinated national actions” – purportedly including more than 100 “strike actions” across the country – on February 17, 2017. The group envisions the February 17th strike as the first in “a series of mass strikes,” including planned mass strikes on March 8 (organized by International Women’s Day and The Women’s March) and May Day, and a general “heightening resistance throughout the summer.” The organizers are encouraging people not to work or shop that day.
What Is Strike4Democracy Planning?
The February 17th strikes appear intended to be “community-based events,” and so while Strike4Democracy apparently intends for these strikes to serve as an overall protest against President Trump’s actions and policy pronouncement since taking office, the specific message of each strike may vary at the local level. For example, one organizing website in Cleveland describes the “demands” of its local February 17th strike to include “No Ban, No Wall,” “Healthcare For All,” “No Pipelines,” “End the Global Gag Rule,” and “Disclose and Divest” (including demands that President Trump release his tax returns and sell his businesses). According to Strike4Democracy, people are being encouraged to participate on “official strike days” by refusing to work, or they can use their lunch breaks “to disrupt and participate” by, for example, posting social media messages “that support democracy . . . to show how you #BreakLunch.”
What Does This Mean For Employers?
Employers may find themselves with some very difficult questions to answer on February 17th (and potentially after that): Do I have to grant a request for time off by one (or many) employees to attend these events? Can I discipline an employee who does not show up to work because he or she has chosen to participate in a mass strike action? Should I send out a message ahead of time to my employees regarding this event? If so, what can I (or shouldn’t I) say? The answers to these questions are largely going to depend on the particular facts of each case. While in many respects these are uncharted waters, the case law developed under the National Labor Relations Act (the “Act”) over the past 80 years does however offer some potentially meaningful guidance for analyzing these questions.
When employees take action to “improve their lot as employees through channels outside the immediate employee-employer relationship,” that activity is protected concerted activity under Section 7 of the Act so long as it has a direct connection to the employees’ working conditions. GC Memorandum 08-10 (2008), pgs. 1, 10 (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). There are, of course, some limitations on employees’ right to engage in concerted political activity. In 2008, the National Labor Relations Board’s (the “Board”) General Counsel issued a “Guidance Memorandum” that is relevant to the current situation, after the Board considered a series of unfair labor practice charges involving employees who missed work to attend nationwide and local protests concerning proposed legislation to restrict employers’ hiring of immigrants as employees. In GC Memo 08-10, the General Counsel concluded that under existing Supreme Court and Board precedent, when employees exert economic pressure on their employer by leaving work to support a political cause, that activity may not be protected if the employer has “no control over the outcome of that dispute.” GC Memo 08-10, pg. 10.
As an initial matter, therefore, the question whether an employee engages in protected activity by attending a February 17th rally or demonstration may largely depend on the cause or “demand” at the center of that that local event. A local rally focused on trying to convince the President to release his tax returns likely will not be found to have a direct connection to most employees’ working conditions. Protests concerning issues like immigration reform or opposing repeal of the Affordable Care Act with its implications for employer-provided health benefits, by contrast, might be found to have a more direct nexus to employees’ working conditions – particularly if those employees are immigrants or work in an industry that relies heavily upon immigrant employees.
However, even if employees’ participation in these mass strikes is considered protected concerted activity (as it concerns a specific issue directly connected to their work conditions and terms), an employer may still regulate that activity through its “lawful and neutrally-applied work rules.” GC Memo 08-10, pg. 13. Therefore, an employer can discipline an employee who violates a work rule by improperly using her cell phone on the work floor to tweet with the hashtag #BreakLunch so long as that work rule is lawful (i.e., it would not be found to violate the Act for some other reason) and has been uniformly applied to impose equivalent discipline on other employees in similar circumstances.
Similarly, an employer can rely on its lawful, uniformly-applied policies to evaluate whether to grant a request for time off to attend a February 17th rally – by asking, for example, whether the employee has sufficient accrued time, or has given enough advance notice, or has found someone to cover his work shift if that is ordinarily required. An employer may also apply its neutral attendance policy (which complies with all applicable leave laws, including local paid sick leave laws) to discipline an employee who simply fails to report to work without calling out.
An employer considering whether to distribute a message to employees in advance of the February 17th events must remain mindful that Section 7 of the Act also protects communications about political matters. Accordingly, a rule prohibiting communications about political matters without clarifying context of examples may be unlawfully overbroad because employees could reasonably construe it to cover communications protected by the Act.
Similarly, a broad admonition against missing work could be considered by the Board to be an unlawful interference with employees’ rights to engage in otherwise protected concerted protected activity. For example in GC-Memo 15-08, which offered guidance on a broad range of employee handbook provisions, the Board’s General Counsel wrote that Memorandum notes that “one of the most fundamental rights employees have under Section 7 of the Act is the right to go on strike,” and therefore “rules that regulate when an employee can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts.” As we noted at the time, GC-Memo 15-08 recognized that not all rules concerning absences and leaving the workstations are unlawful, and that a rule would be lawful if “such a rule makes no mention of ‘strikes,’ ‘walkouts,’ ‘disruptions’ or the like” since employees should “reasonably understand the rule to pertain to employees leaving their posts for reasons unrelated to protected concerted activity.”
What Employers Should Do Now
All employers should be prepared to address these issues as they arise – if not this week, then in the coming weeks and months if these types of mass protests continue. As described above, an employer’s reaction to its employees’ expressed desire to participate in these events will vary widely based on the individual circumstances at issue.