You might have to live under a rock not to have heard about the Occupy Wall Street protests by now. As such protest activity spreads to additional cities and towns around the country, employers should prepare for issues that may arise if their employees opt to join in or support such activity in person or via social media.
Many non-union employers have been surprised to learn recently that even though their employees are not unionized, the NLRB may still take a keen interest if an employee who has joined with other employees to protest or complain about inadequate wages or unfair working conditions is disciplined. Under the National Labor Relations Act, employers generally cannot legally exact discipline on such employees because they are engaging in “protected concerted activity.” Although such activity can lose its protection at times when employees engage in egregious misconduct, the NLRB does not consider a group of employees striking for a day or two to constitute such misconduct. However, if strike activity is repeated intermittently, or employees engage in a “partial” strike by refusing to do some, but not all, their work duties, the result can be different. In such circumstances, employers generally have a free hand to exact discipline up to and including termination.
Occupy Oakland called for a “general strike” in Oakland, California on November 2, 2011. Whether this call will spread to other cities is unclear. It would not be the first time a general strike has occurred in Oakland. In October 1946, 400 clerks from downtown Oakland’s Hastings and Kahn’s department stores went out on strike while trying to unionize. In early December, the strike escalated when Oakland police cleared away pickets and tried to protect trucks crossing the picket line. On December 3, 1946, approximately 100,000 AFL-affiliated workers employed in Oakland responded by declaring a “work holiday,” walking off their jobs.
Not only can the National Labor Relations Act come into play and protect individuals participating in protected concerted activity, but many states, including California, have laws that protect employees engaged in lawful off-duty activity. In addition, California has generally dispensed with the “state action” requirement for violations of California constitutional rights. It is thus generally illegal for employers in California to retaliate against their employees for engaging in political protest. (This also may constitute a separate statutory violation under certain provisions of the California Labor Code).
The bottom line — an employer that reflexively terminates or disciplines employees for supporting or participating in the activities of the Occupy Wall Street movement may eventually find itself on the short end of a legal stick. Employers are well advised to weigh their legal options carefully when and if they are contemplating their response to employees engaged in this kind of activity.