A day without immigrants: That is how organizers on social media describe plans for a nationwide strike threatened for February 16 and/or 17, 2017. If your employees join in this nationwide effort, you should consider three overlapping areas of law in planning your response — the National Labor Relations Act (NLRA), Title VII, and the Immigration and Nationality Act (INA).
The NLRA protects employees who engage in certain types of strikes. First, employers are not allowed to do anything that would coerce employees not to engage in a protected strike. This includes asking employees about going on strike, engaging in surveillance of the strike, and threatening employees to try to keep them from participating in the strike. Second, employers are not allowed to discriminate against employees who participate in a protected strike.
A strike is protected only if it is related to “terms and conditions of employment.” At first blush it does not appear that the strikes planned for later this week are related to terms and conditions of employment — they are about President Trump’s policies. If employees ultimately strike for only that reason, the National Labor Relations Board (NLRB) would likely consider that strike to be unprotected. In that case, employers would be free to apply their disciplinary policies to any employee that participates in the strike. However, employees in any workplace could convert a purely political strike into a strike over terms and conditions of employment. For example, a strike protesting President Trump’s treatment of immigrants could quickly morph into a strike protesting supervisors’ treatment of immigrants. As soon as employees are acting in concert to protest workplace concerns, that activity is protected. This necessarily means that the reason(s) employees do not report to work or engage in other strike-related activity while at work must be known to the employer — employers are not required to guess and presume that an employee’s actions are protected.
If your workforce is already unionized, review your collective bargaining agreement for a no-strike provision. However, employers should not assume they are immune from liability under the NLRA if their workers are not represented by a union. If, as stated above, employees act collectively to dispute workplace conditions, they will likely be protected.
Keep in mind that any disciplinary decisions related to employees who engage in strike-related activities should also be made even-handedly without regard to the employees’ race/color, national origin or religion. Failure to do so may result in exposure under Title VII.
From an immigration perspective, the strike(s) this week (and any future strikes with a similar purpose) may raise issues related to undocumented employees or those who have presented inauthentic work authorization and identity documents to gain employment. If, in connection with such a strike, employees declare their undocumented status or indicate that they are working with false documents, employers have gained constructive knowledge that may affect the employment relationship. Under the employer sanction provisions of the Immigration and Nationality Act, “knowing” includes not only actual knowledge that an employee lacks proper work authorization or has used false documents, but knowing also includes knowledge that a reasonable person may fairly infer through certain facts and circumstances that would lead to awareness about an individual’s unlawful employment status.
When made aware of an employee’s unauthorized status, employers must proceed carefully and contact legal counsel to ensure compliance with their obligations under the INA.
If the political demonstrations early in President Trump’s administration are any indication, organized actions could become more prevalent in the workplace. Social media provides platforms for organizing quickly and without much, if any, warning to employers. Therefore, regardless of whether plans for a nationwide strike materialize this week, employers will benefit from planning now. For instance, HR professionals and supervisors should be informed of the potential for absences and on-site protests or similar activities and should be advised not to broach the issue with employees in advance, to carefully note any reasons cited for strike-related activities (for determining whether protected or not), and that disciplinary action should be carefully considered before being dispensed. Defining your company’s strategy ahead of time, instead of simply reacting to what occurs, should go a long way to limit liability and keep your business humming during this political transition period.