Wait . . . Can They Do This? Employers’ Responses to a National General Strike
What began as a rumor has now become a real possibility for significant grassroots action. Activists who oppose President Trump have called for a national general strike on Friday, February 17, 2017. According to main organizing group, Strike4Democracy, President Trump has “put our foreign policy and our very democracy in peril” by taking numerous actions that, “signal a move away from democratic governance.” The group’s response? A day of general strike and nonviolent civil disobedience and demonstration to “show Donald Trump . . . that our voices will be heard.” With several days left before the strike, the group is gaining interest through social media.
In light of the growing support, several questions arise for employers. Do employees have a legally protected right to skip work to protest or support a political cause? If not, can an employer discipline employees who participate, and what level of discipline is appropriate? Are there any steps an employer can take to ensure its employees report to work? Should an employer take a public stance on the general strike in advance?
Section 7 of the National Labor Relations Act (NLRA) gives employees the right to engage in concerted activities for the purpose of their “mutual aid or protection.” Section 8 of the NLRA makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Therefore, as with many areas of the law, whether employees have a legally protected right to miss work for political advocacy depends on the circumstances.
When considering whether employees’ political advocacy is protected by the NLRA, the National Labor Relations Board (NLRB) has provided some guidance. According to the NLRB, non-disruptive political advocacy for or against a specific political issue affecting specific employment concerns and which occurs during the employee’s own time and in non-work areas is protected. On the other hand, leaving or stopping work to engage in such political advocacy may be but is not necessarily protected, and an employee taking this course of action may be subject to lawful work rules. In those situations, the protected/unprotected question often turns on whether the employee’s absence—and resulting economic pressure on his or her employer— is related to an issue over which the employer has control. If the employer does not have any control over the outcome of the dispute, the employee action is not protected, and employees engaging in such a “strike” are subject to discipline.
Although the Board’s guidance may seem clear-cut, employers facing the possibility of mass absences due to the looming February 17 national strike are likely to find it more challenging to apply the Board’s guidance in harmony with existing positive labor relations policies. Determining whether the underlying political disputes relate to specific employment concerns and whether the employer arguably has any control over the ultimate outcome may not be a straightforward exercise.