Threatened Walkout Related to Immigration Reform Raises Complex Issues

In the last several days, newspapers across the country have reported that some Hispanic immigrant groups and other employee advocates are trying to organize a nationwide work stoppage on Monday, May 1. These groups hope to pressure the United States Congress to enact immigration reform that includes amnesty provisions for illegal immigrants, who are estimated to number more than 11 million. They have been emboldened by the effectiveness of the mass demonstrations against the House bill that would have made felons of many illegal immigrants. Advocacy groups now hope that a massive, nationwide walkout will demonstrate how vital immigrant workers are to the nation's economy. Indeed, the Pew Hispanic Center estimates that one in twenty workers in the United States is an illegal immigrant. Employers need to be aware of the legal issues that may arise if they threaten or take disciplinary action against employees who walk out on May 1 in support of the campaign to foster immigration reform.

As a general rule, the safest bet for employers in most states is simply to apply pre-existing attendance policies and practices to any one employee's isolated absence in support of immigration reform on May 1. If the employer deviates from existing policy with respect to its discipline of an Hispanic protester, it may have to defend against a claim of national origin discrimination. Thus, for example, if an employer were to fire an Hispanic employee who refused to work on May 1, the employee might argue that the employer's tolerance of other "unexcused" absences by similarly-situated, non-Hispanic workers is evidence that the protesting employee's national origin is the real reason for the discharge.

The more complex issue is what to do if employees refuse to work on May 1 and tell their employer they are refusing to work because the immigration reform that they are seeking will improve their working conditions and the working conditions of other Hispanic employees in the United States. They might, for example, argue that, so long as one in twenty American workers is undocumented, those workers will be reluctant to assert their rights under the Fair Labor Standards Act, ERISA, Title VII and other statutes that protect employee rights, thus holding down the price that employers will pay for their labor. If their employer were to then discipline them for "striking" on May 1, the employer would probably be surprised to learn that its actions may violate the National Labor Relations Act ("NLRA").

Most employers know that it is unlawful to fire two or more employees for striking to put pressure on their employer to raise wages or change some other term or condition of employment. This is true even if the employees are not unionized and have never even mentioned the idea of unionizing. What some employers do not know, however, is that the NLRA also protects certain concerted, work-related conduct by employees that is designed to change working conditions by persuading legislators to change the law. Both the right to strike and the right to engage in such political activity are derived from Section 7 of the NLRA, which protects the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157 (emphasis added). Striking is an activity that is generally protected if it is "concerted" and is for the purpose of "mutual aid or protection." It is concerted if two or more employees act "in concert" or when one employee acts on the authority of other employees. So, almost any employer could be faced with a "concerted" boycott by a subset of its employees on May 1. The more difficult legal issue is whether the National Labor Relations Board ("Board") will deem such conduct to be protected conduct that is "for the purpose of … mutual aid or protection." There are at least three decisions that suggest that it might.

First, in Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), the United States Supreme Court held that Section 7 protects the right of an employee to distribute literature in the Company lunchroom that urges other employees to write their legislators to raise the minimum wage. Although the employees at Eastex already made more than the minimum wage, the Board concluded that the "minimum wage inevitably influences wage levels derived from collective bargaining, even those far above the minimum." The Court approved that conclusion, reasoning that Section 7's "mutual aid or protection" clause was intended to allow employees "to improve their lot as employees through channels outside the immediate employee-employer relationship." The Court noted that the policy of the NLRA is to "protect the right of workers to act together to better their working conditions."

Four years later, the Court cited Eastex with approval in deciding that longshoremen's refusal to load freight bound for the former Soviet Union, in protest over the Soviet Union's invasion of Afghanistan, was a "labor dispute" within the meaning of the anti-injunction provisions of the Norris-LaGuardia Act. Jacksonville Bulk Terminals v. International Longshoremen's Ass'n, 457 U.S. 702 (1982). The Court explicitly rejected the contention that the dispute was only "political" and not a "labor dispute" since the employer had no power to do anything that would satisfy the striking employees.

Finally, in Kaiser Engineering, 213 N.L.R.B. 752 (1974), the Board concluded that the subject of immigration reform is sufficiently connected to employees' terms and conditions of employment to bring at least some employee conduct within the ambit of the mutual aid or protection clause. In particular, the Board concluded that Kaiser Engineering had violated the NLRA when it fired employees who wrote letters to Congress opposing the relaxation of immigration laws. The discharged employees were engineers who had opposed the immigration of more engineers. The Board concluded that the employees were trying to protect themselves from an influx of cheap labor that would drive their wages down. While there is no clear indication that the current Board would follow Kaiser Engineering, it was cited approvingly by the Supreme Court in Eastex. 437 U.S. at 536 n. 16.

The New York Times reported on April 15 that some employees have already filed charges with the NLRB after they were disciplined for missing work to participate in protest marches earlier this month. Thus, it seems likely that more charges will be filed after the May 1 walkout. Whether the Board sustains such charges will likely turn on what each group of employees says about why they are refusing to work.

What is an employer to do? First, employers should not threaten that disciplinary action will be taken if employees walk out. As a practical matter, it is not at all clear that there will be a massive walk out. Many immigrant groups are counseling employees not to walk out, fearing that a massive protest could backfire politically. And, employees working under collective bargaining agreements that contain sufficiently broad no-strike clauses are likely subject to discharge if they walk out in violation of the no-strike dictates. For this reason, unions like the Service Employees International Union are cautioning their members not to strike.

Second, any employer who expects that significant numbers of its employees may walk out on May 1 should educate supervisors and managers about how to respond to employee inquiries, make contingency staffing plans for the day, and consider communicating with employees before May 1 about the employer's position, whether the employer will accommodate requested shift changes, and the like. Handled properly, this event may provide an employer with a good opportunity to win the trust and support of its immigrant workforce.

Finally, employers considering disciplinary action in response to an employee's refusal to work on May 1 should consult with legal counsel.