How Will Employers Handle Future Protest Walkouts?
February 17, 2017 marked the first of what will be several "A Day Without" protests scheduled across the country.
The next 2 scheduled protests are planned for March 8, 2017 which is "A Day Without Women" "to recognize" the enormous value that women of all backgrounds add to our socio-economic system - while receiving lower wages and experiencing greater inequities, vulnerability to discrimination, sexual harassment, and job insecurity" and coincides with International Women's Day. Tentatively scheduled for May 1, 2017 is the next "A Day Without Immigrants" (which is also "International Workers' Day").
There's a good possibility one or more of your employees will want to attend one of these or other political protests.
"A Day Without Women" offers 3 options for women:
From an HR perspective, employers should get ahead of how to handle these situations so that they are prepared in the event the workplace takes a direct hit from a walkout or strike. In doing so, there are important legal issues that employers need to consider in the event an employee chooses not to work on either of these dates.
First, the National Labor Relations Act (NLRA) protects employees who engage in concerted activity which applies to both unionized employers and non-union employees who come together to achieve a common goal. Therefore, employers covered by the NLRA are prohibited from taking adverse action against employees for exercising their right to plan a walkout (such as the February 17th walkout).
Employers cannot separate an employee for exercising their rights to protest. However, the NLRA only protects workers who engage in lawful concerted activity for purposes of mutual aid and protection. An employee who engages in inappropriate activities can lose NLRA protection. For example, employees who advocate the destruction of property in any way can be disciplined.
What Can An Employer Do Now?
An employer can remind employees now of their Attendance/Tardiness and Reporting Off Work policies and also provide all employees with copies of these policies. However, employers should refrain from immediately disciplining workers who don't show up for work or who walk off the job. This includes not terminating employees in advance of missing work or terminating employees on the spot during a walkout for exercising their right to protest. Disciplining an employee who does not work a scheduled shift may be appropriate, but employers need to carefully consider discipline and make certain that it is consistent with their company policies and practices.
If employees walk out without prior approval, instruct your managers to engage with workers - preferably with a witness present - to ask them where they are going or whether they're leaving their job despite being scheduled to work. If the employee discusses the protest, offer them the option of discussing their concerns with management during a break or at the end of their shift. If they refuse, inquire about the reason for the protest and listen for any connection to employment terms or conditions before making a decision about how to respond.
Then, employers should consult their HR Representative or their legal counsel to discuss each situation on a case by case basis to determine whether the employee's activity is NLRA protected or not. Please note that one-time protests are often deemed protected.
If employees do not show up for work and do not call (per your company policy), employers should give their employees the opportunity to explain the absence. While the generalized nature of "A Day Without..."protest is unlikely to be protected by the NLRA, each situation will be different and each employee's reason for protesting could be protected. For instance, if the employee says work was missed because of "protests," that may not be enough to receive protection under the NLRA. But if they tie the protests to working conditions, risk-adverse employers may want to give those workers the benefit of the doubt.
If the walkout is protected, ensure managers know not to threaten the employee(s) with discipline. Employers can inform the employee that they will not be paid for the time they spend off the job (if the employee does not have any available vacation/PTO to use) and can request these employees clock out before they leave, but employers should not force them to clock out if they walk out anyway.
In conclusion, employers should know that it is ok to inform their employees that they appreciate the message that the walkout is intended to express and that employees need to follow the company policies for reporting off work and if they know in advance they will be taking a day off they should let you know as much in advance as possible.
Any questions, please contact Lauren Brenner at 617-614-1271 or firstname.lastname@example.org.