The increase in activism in the last year has led to questions from employers about what their rights are when employees are absent from work to attend protests or engage in other political activities. This topic is especially relevant on the eve of the annual May Day protests, which are scheduled to take place on May 1. Employers should be aware that the National Labor Relations Act and the laws of some states may protect private sector employees who engage in protests and other similar activities.
The Supreme Court of the United States has held that employees are engaging in protected activity under the NLRA when they seek to “improve their lot as employees through channels outside the immediate employee-employer relationship.” In 2008, the National Labor Relations Board’s General Counsel published guidance clarifying concerted activities in the context of political activity. The General Counsel’s memo explained that employee political advocacy, such as participation in a protest, may be protected if there is a connection between the issues addressed by the protest and employment-related concerns. The NLRB has taken a broad view of when a connection exists. For example, the NLRB General Counsel referred to a situation when employees engaged in protests regarding immigration reform which would have imposed restrictions on employees before they were allowed to work in the United States and found that these protests had a direct nexus to employment-related concerns. Therefore, employers were prohibited from disciplining or retaliating against any employees who engaged in protests regarding the immigration reform off-duty and on their own time. Given May Day’s historical roots in improving working conditions, employers should assume that May Day protests are sufficiently related to employment conditions and thus considered protected activity under the NLRA.
Although employers cannot discipline or retaliate against employees who engage in protected political activity off-duty and on their own time, the General Counsel memo also states that the means employed to carry out that advocacy may not be protected. Action may be taken against on-duty employees, employees who call out sick, or those that are a no-call/no-show in order to engage in such advocacy, as long as the employer acts in accordance with neutral work rules which do not discriminate based on the nature of the political action.
Employers dealing with workers requesting time off to attend protests retain certain rights to enforce lawful and neutral policies. An employer may deny the right to use paid time off pursuant to an existing rule that limits the number of employees that can request off at a time or a rule requiring a notice period which allows the employer to find someone to cover the absent employee’s duties. An employer who has neutral policies which are applied consistently may: (1) refuse to grant the day off; (2) count the absence against the employee for disciplinary purposes; or (3) terminate the employee for the absence, a no-call/no-show or a refusal to appear for work after the request for the day off is denied.
However, employers are advised to consider the practicality of disciplining employees who choose to partake in protests, as enforcing attendance policies or other policies which may not be perfectly clear or inconsistently enforced risk legal liability. Indeed, the NLRB has been active in enforcing the NLRA. In November 2015, the NLRB ordered a St. Louis based Chipotle fast-food restaurant to reinstate a worker who had been terminated for discussing wages with coworkers and participating in a protest supporting a minimum wage increase.
Employers are also advised to review any applicable collective bargaining agreements, as they may include a “No strike” clause prohibiting employees from engaging in strikes, slowdowns or other similar actions. If this is the case, then employees who skip work may be in violation of the CBA.
Aside from the NLRA there are also many states such as California, Colorado, Illinois, Missouri, North Dakota, and Wisconsin which have laws which have laws protecting employees from discrimination or retaliation for their off-duty political activities. New York employers should also be aware of the Legal Activities Law which prohibits employment discrimination based on off-duty involvement in political campaigns or fundraising activities. New York courts have adopted a restrictive interpretation of the Legal Activities Law so it is unlikely that it will be held to apply to employee protests.
Conclusion In light of the updates to the laws and regulations discussed, employers are advised to:
- review their attendance policies to ensure that they are neutral and do not discriminate based on type of political/activist action at issue; and
- appropriately train human resources professionals to properly apply any relevant policies so they do not infringe on any employee rights protected by the NLRA or applicable state or local laws and regulations.