by Jacob M. Monty
Monty & Ramirez, LLP
Employers need to be aware of legal risks associated with how they handle various protests related to immigrants in the United States, including a boycott and work stoppage planned for February 16.
The “A Day Without Immigrants” campaign is encouraging immigrant employees to stay home from work, immigrant-owned businesses to close, immigrant students to stay home from school, and immigrant customers to refrain from making any purchases on February 16.
The protest raises legal issues for employers on two fronts—protected concerted activity and immigration compliance efforts.
The National Labor Relations Act (NLRA) protects employees who engage in concerted activity. Although many associate the NLRA with unionized employers, it also applies to nonunion employees coming 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 the February 16 walkout, but employers shouldn’t ignore the situation. Instead, they should feel free to let their employees know that they appreciate the message that the walkout is intended to express. If applicable, employers can let employees know that they belong to trade organizations that support immigration reform.
Employers also should remember that employees who engage in inappropriate activities can lose NLRA protection. For example, employees who advocate the destruction of property in any way can be disciplined.
Employers should make clear that employees shouldn’t feel pressured to walk out and that they can support the issues and still come to work.
When dealing with absences resulting from a walkout, employers can remind workers of their attendance policy in advance. However, employers should avoid terminating employees in advance of missing work or terminating employees on the spot during a walkout.
Disciplining an employee who doesn’t work a scheduled shift may be appropriate, but employers need to carefully consider discipline and make certain that it is consistent with company policies and practices.
Employers need to make certain they don’t assume that employees who participate in a walkout are undocumented workers. Employers have no legal basis to assume that employees who demonstrate or otherwise show solidarity with protesters are undocumented workers.
National immigration policies are an important issue to the whole immigrant community, documented and undocumented individuals alike. Also, many employees are heavily invested in immigration-related laws and policies and have mixed-status families.
Therefore, employers should make sure that managers don’t jump to conclusions regarding an employee’s work authorization. An employee’s status is determined at the start of the employment relationship when she completes Form I-9, and employers can’t take action based on suspicions.
Finally, employers need to make sure they are up to date on Form I-9 compliance. Employers need a system to ensure the current version of the form is completed accurately and on time.