Many employers saw their ranks diminished on February 16 as a host of employees stayed away from work in support of the nationwide “A Day Without Immigrants” campaign. 
Employers are likely to see that situation repeated as more protests are scheduled for the coming months. A walkout to support “A Day Without a Woman” is scheduled for March 8, and another “A Day Without Immigrants” is scheduled for May 1.
Most of the time, employers are clear about how to apply their attendance policies, but the new wave of protests brings up possible complications. An employer’s first thought may be to discipline employees who skip work to participate in a protest, but Kevin C. McCormick, an attorney with Whiteford, Taylor & Preston, L.L.P. in Baltimore, Maryland, says such “instincts are probably not the right things to follow” in this situation.
Under the National Labor Relations Act (NLRA), employees of covered employers have the right—whether they’re unionized or not—to engage in concerted activities that relate to their terms and conditions of employment. A worker taking off work to protest the overall political climate probably isn’t protected, McCormick says. But employees saying they’re taking off work to protest the government’s policy on immigration, wages, etc. probably is protected since such topics have a connection to the terms and conditions of employment.
Employers can enforce attendance policies, but they have to be careful to consider the purpose of the walkout to make sure any discipline doesn’t become an unfair labor practice under the NLRA, McCormick says. He’s heard of some employees being fired for skipping work to participate in the February 16 protest, but that’s dangerous since the National Labor Relations Board (NLRB) is likely to consider discipline for employees protesting the Trump administration’s immigration policy as an unfair labor practice.
“Don’t rush to judgment”
Most employers have attendance policies that require employees to submit time-off requests a certain amount of time in advance and that allow a limited number of days off. Therefore, some employees can take time off without running afoul of an employer’s policy, but others may not have available time off.
“I think it’s still probably a good idea to remind them that it’s an unexcused absence,” McCormick says, but “don’t rush to judgment.” If a protest is sufficiently related to the terms and conditions of employment, decisions of the current NLRB indicate that an employee missing work for one of the scheduled protests likely is engaging in protected concerted activity.
The makeup of the Board is likely to change in coming months since there are currently two vacant seats that the Trump administration will try to fill. Currently, the Board is made up of two Democrats—Mark Gaston Pearce and Lauren McFerran—and one Republican—Philip A. Miscimarra, the acting chairman. When the two vacant seats are filled, there is likely to be a 3-2 Republican majority that could change the positions the NLRB takes.
But any employer taking action against an employee for engaging in concerted activity shouldn’t take any possible change in the NLRB membership as a license to be aggressive in disciplining employees for missing work for a walkout connected with the terms and conditions of employment, McCormick says, because no one knows what the future holds and the time it takes for a case to percolate through the system could put the employer at risk of having to pay large amounts in back pay if a fired employee has to be reinstated.
In support of the cause
Some employers may decide to close in support of a protest, leaving employees to wonder whether they will be paid. McCormick says the law doesn’t require employers to pay nonexempt employees for the day. Likewise when an employer doesn’t close, nonexempt employees don’t have to be paid if they take a day off for a protest.
What employers can do
Jacob Monty, an attorney with Monty & Ramirez LLP in Houston, Texas, also advises employers to be careful disciplining employees missing work to take part in a protest. In advance of the February 16 protest, his firm issued a memo explaining that the NLRA prohibits employers from taking adverse action against employees for exercising their right to plan the protest, but employers also shouldn’t ignore the situation.
The memo encouraged employers to “make clear that employees should not feel pressured to walk out just because others have stated that they intend to” and “employees should be informed that they can be supportive of the issues and still come to work.”
The memo also says employers can remind employees of the company’s attendance policy in advance of any walkout. “However, employers should avoid terminations in advance of the employee actually missing work or terminations on-the-spot during a walkout. Disciplining an employee who does not work a scheduled shift may be appropriate, however it is important to carefully consider the type of discipline and be sure that it is consistent with the company’s policies and practices,” the memo says.
Need to learn more? From HR’s perspective, the thought of workers going out on strike to protest raises many important legal issues—issues that you should get ahead of so you’re prepared in the event your workplace takes a direct hit from a walkout or strike. Join us March 1 for the live webinar ‘A Day Without’ Walkouts: How to Maintain Productivity and Avoid NLRA or Discrimination Claims When Employees Walk Off the Job. Kevin C. McCormick, Esq., who is a partner at Whiteford, Taylor & Preston where he chairs the Labor and Employment Section , and Jacob M. Monty, Esq., who is a founder and managing partner at Monty & Ramirez LLP, will discuss what HR should do to prepare for and respond to “A Day Without” walkouts and strikes. For more information, click here.