Employee Participation in Social Movements: What's an Employer to Do?
Miller & Martin PLLC Alerts | March 02, 2017
by Karen Smith
International Women's Day takes place every year on March 8, with the stated goal of raising awareness about women's issues. This year, however, purports to be a bit different, with a call from the Women's March on Washington for a general strike, calling it "A Day Without A Woman." On social media, Women's March organizers ask, "Do businesses support our communities, or do they drain our communities? Do they strive for gender equity, or do they support the policies and leaders that perpetuate oppression?" One day after President Trump was sworn in, women and men gathered and marched in cities nationwide in order to highlight that "women's rights are human rights." With another call for women to "unite again," what, if anything, can employers do when employees respond to such political calls to action? Can employees who participate in social movements by failing to report to work be disciplined? Well, it depends.
The National Labor Relations Act (NLRA) protects concerted activity (action taken by two or more employees for the mutual aid and protection of workers or action taken by one employee on behalf of other employees), but that concerted activity must somehow relate to the terms and conditions of their own employment. Thus, if I choose to participate in a social movement march, politically-motivated strike, etc., my actions will only be protected under the NLRA if there is a sufficient connection between the specific issues that are the subject of the march, strike, etc. and some employment-related concerns I may have. These concerns also must be something over which my employer has control -- such as my wages, versus the election of President Trump. If the motivation for political activity or the subject of the strike is a national political issue over which my employer has no control, then my decision to miss work to attend that political strike, rally, march, etc. will likely not be protected.
That said, be careful. Some issues may seem to be out of an employer's control but may still be deemed sufficiently related to an employee's own terms or conditions of employment so as to be protected. For example, several years ago, employees of a fast food chain held a nationwide strike in support of raising the national minimum wage. Although the employer had no control over defining the national minimum wage, the employees' own wages and working conditions were the primary motivation for their participation in the strike and were obviously something over which the employer had control. Thus, the NLRB concluded that the strike constituted protected activity and ultimately filed complaints against the fast food chain for issuing disciplinary action against participating employees for missing work due to the strike.
Remember also that the NLRA applies both to unionized and non-unionized employers. So, don't think that the lack of a union in your workforce prohibits its application. Thus, if you see one of your employees marching in Washington after calling in sick, you may need to take a step back and determine if the reason for the absence could be deemed sufficiently related to a workplace concern so as to be protected by the NLRA before disciplining the employee for the absence.
If you have further questions on this topic, please contact Karen Smith or any other member of our Labor & Employment Law Practice Group.