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April 25, 2017

Don't Strike Out: What to Do if Your Employees Strike on May 1

With the news reporting a large labor strike of around 350,000 workers planned for May 1, employers should develop a response strategy now to limit liability and keep their businesses humming. The nature of this strike may provide greater protections for workers under the National Labor Relations Act (NLRA) than the “day without immigrants” in February, so employers should proceed with caution.

Types of Strikes and Limits on Employers’ Responses

The NLRA provides varying protection for three types of strikes:

1. Strikes with a direct connection to employment-related concerns that are controlled by the employer.
The NLRA generally protects employees who engage in these types of strikes from any sort of adverse consequence. For instance, the employer may not discipline them even if their participation in the strike violates its attendance policies, although it could discipline them if they threatened or struck a co-worker who crossed the picket line. Any discipline would need to be based on fairly egregious conduct.

2. Strikes with a direct connection to employment-related concerns that are not controlled by the employer.
Employees who strike in this circumstance enjoy less protection under the NLRA. Their employer may not retaliate against them for engaging in the strike, but it may apply its pre-existing practices and policies, including its attendance policy. These employees must abide by their employer’s lawful policies to avoid any discipline.

3. Strikes without a direct connection to employment-related concerns.
The NLRA offers no protection for employees who engage in protests in the form of strikes that are not related to terms and conditions of employment. The NLRA allows employers to enforce their pre-existing practices and policies, including issuing discipline for attendance, uniform violations and disruption of production. But be careful — employees can quickly convert a strike to one that enjoys greater safeguard under the NLRA by shifting the focus to concerns controlled by their particular employer. Additionally, disciplinary activities should always be made even-handedly without regard to employees’ sex, race/color, national origin, religion, disability or age to avoid exposure under other employment laws.

Strikes can quickly ratchet from one level to another, and employers must be on their toes.

Why the May 1 Strikers Will Likely Have Some Protection

The “day without immigrants” in February 2017 was a protest of President Trump’s immigration policies, and had no direct connection to employment-related concerns. It likely fell into the third category above. At this early stage, it seems the strike planned for May 1 will fall into at least the second category. It coincides with International Workers’ Day, a common day for labor demonstrations. Although rhetoric in statements about the strike has again touched on President Trump’s immigration policies, the organizers also specifically cite “government and corporate interests” that “[d]rive down wages, safety protections, and organizing rights . . .”

If employees strike on May 1 about employment concerns generally, but not issues controlled by their particular employers, they will enjoy the second type of protection described above. However, if workers add specific terms and conditions of employment controlled by their employers to their focus, it will provide employees with the greatest protection under the NLRA.

Employers’ responses to the May 1 strike should take into account the nature of the strike and how it is addressed under the NLRA.

How to Prepare for a Strike

In the case of a planned strike, such as May 1, employers should ensure all front-line supervisors are aware of potential absences and protest activities and advised not to broach the issue with employees in advance, to carefully note any reasons cited for strike-related activities, and to consider disciplinary action carefully before dispensing it.

If your workforce is unionized, review your collective bargaining agreement for a no-strike provision, which may provide you with greater recourse in the event of a protected strike.

If your workers are not represented by a union, your company is not immune from liability under the NLRA for violating the standards applied to employee strikes. If anything, there is an additional concern because a large-scale strike is often used by unions as an opportunity to recruit support for a union at non-union facilities in the hope of gaining new, dues-paying union members. The powerful Service Employees International Union (SEIU) is involved with planning the strike on May 1, and they are skillful campaigners. Recent changes have made organizing easier, especially where only a small pocket of employees seeks to organize, where employers utilize temporary workers, and at private universities.

All employers, particularly those in the service industry, should develop a plan for how to respond if their employees strike on May 1. Even if this strike makes less of a splash than organizers hope, employers will have benefited from strategizing now—the next strike might not have such public warning.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

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