Earlier in July, organizers and labor organizations across the country were in the process of holding a “Strike for Black Lives”—a national walkout of workers in support of “dismantling racism and white supremacy to bring about fundamental changes in our society, economy and workplaces.”
While the event has already taken place, to limit liability and keep their businesses running, employers must understand employees’ legal rights to participate in 1-day political strikes, like these. The National Labor Relations Board (NLRB) has interpreted the National Labor Relations Act (NLRA) to provide important protections to employees who engage in such strikes, and employers should respect the analysis and respond accordingly.
NLRA Protects Political Strikes
The NLRA protects employees’ rights to engage in concerted activity, including the right to strike, when the purpose is to improve the terms and conditions of their employment. The “protection” means an employer can’t discipline or discharge an employee for engaging in concerted activity.
The NLRB has interpreted the NLRA’s protection of concerted activity broadly to include strikes for political purposes. The Act will protect a political strike if (1) its purpose has a “direct nexus” to employee working conditions and (2) the employer has some degree of control over the striking workers’ objective.
To understand why the Board is likely to view the 1-day “Strike for Black Lives” as protected, it’s helpful to look back at another political day of action, the 2017 “Day Without Immigrants.”
On February 16, 2017, employees across the United States engaged in a strike against President Donald Trump’s policies designed to crack down on undocumented immigrants living in the country, including the possible revival of workplace raids by immigration authorities.
In a 2017 advice memorandum, the NLRB general counsel found the strike was protected by the NLRA:
- The strike had a “direct nexus” to employee working conditions because aggressive immigration enforcement plainly threatened unauthorized workers’ job security and likely caused employment standards and working conditions to deteriorate for all workers; and
- Employers had sufficient control over the strike’s objectives.
While a single employer couldn’t individually control the country’s immigration agenda, it could “take a stand with hundreds of other companies” to influence the administration to change course and take steps within its own workplace to address the striking employees’ concerns.
If the NLRB’s protection of the “Day Without Immigrants” strike is any indication, the Board is likely to find employee participation in a “Strike for Black Lives”—the goals of which include demanding corporations take immediate action to dismantle racism within the workplace and highlighting the importance of unions—constitutes protected concerted activity.
What Does this Mean for Employers?
Most important, employers generally shouldn’t discharge or discipline employees for participating in “Strike for Black Lives” events. It also means you shouldn’t engage in conduct designed to discourage or frustrate employee participation in such a day of action.
Instead, you should manage around any operational challenges a day of action may cause. Ensure all front-line supervisors are aware of potential absences, and take steps to staff your workplaces to account for missing personnel. Advise the supervisors to note any reasons cited for strike-related activities, and carefully consider disciplinary action before dispensing it.
Additionally, unions often use national planned strikes, like this one, for recruitment purposes. Employers with nonunionized workforces should consider providing training to supervisors and managers on how to discuss unionization with their employees.
Mark J. Foley, Matthew A. Fontana, Conor J. Hafertepe, and Maria L.H. Lewis are attorneys with Faegre Drinker. You can reach them at mark.foley@faegredrinker.com, matthew.fontana@faegredrinker.com, conor.hafertepe@faegredrinker.com, and maria.lewis@faegredrinker.com, respectively.