As a general principle, an employer cannot discipline employees who do not report to work to participate in or support a strike against their employer, provided the strike satisfies legal requirements, such as the 10-day notice requirement that is unique to employers in the health care industry. However, a recent appellate court decision suggests that when employees are dishonest with employers about their intent to report to work in connection with strike activity, disciplinary action may be proper if the employee dishonesty implicates risks to people or property.

In NLRB v. Special Touch Home Care Services, Inc., the United States Court of Appeals for the Second Circuit concluded that employees do not engage in protected activity if they lie about their intention to report to work during strike activity, provided the failure to report results in foreseeable risk to people or property. In making this decision, the court declined to enforce a decision of the NLRB reinstating a group of workers to their former jobs, finding in the process that the NLRB’s analysis improperly focused on whether harm actually occurred instead of the potential for such harm.

In the case, the union properly gave the health care industry employer the required 10 days notice for the health care industry of its intent to strike. The problem then arose from a group of 48 aides who responded to the survey by saying they would work, and then failed to report. Even though most of these employees’ assignments were covered and no patients suffered any harm from the failure to receive care or from delayed care, and even though court made clear because notice of the strike was proper the employer generally could not have enforced its call-in procedures, the employees’ responses to the survey changed the situation. Had the aides simply not responded to the survey, the employer could have presumed it needed to make coverage arrangements. However, because the aides responded in a manner that misled the employer, causing a foreseeable risk to patient safety, the activity was not protected and the employees were not required to be reinstated.

From a narrow perspective, the decision is that employees do not engage in protected activity when they mislead their health care employer about their attendance intentions during strike activity and thereby create a foreseeable risk to patients. From a potentially broader perspective, the case suggests that employers can impose discipline for employee violations of individual work rules (when the violation relates to a strike) when the violation creates a foreseeable risk to property or people — indeed, the court decision specifically mentioned other situations outside health care settings in which an employee’s departure without notice created a safety hazard. Though this decision is a good one for employers, when considering employee discipline in connection with strike activity, employers should seek counsel to make sure such disciplinary action is proper and will not create unfair labor practice liability.