Women’s March Continues, but Strikers May Lack Labor Law Protections

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By Jon Steingart

Women around the country will participate in a work stoppage March 8 to highlight the growing role of women in the workplace. But what could happen to those who decide to skip a day of work, and what about businesses that shut their doors in solidarity with protesters?

The National Labor Relations Act protects workers’ right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” It also protects their right “to refrain from any or all such activities.” The right to engage in or refrain from these activities exists whether or not there is a labor union.

“If you don’t know your employee is engaged in protected concerted activity, then you cannot unlawfully fire them on that basis,” Jon Spitz, a co-chair of the labor and preventive practices group at Jackson Lewis and a principal in the law firm’s Atlanta office, told Bloomberg BNA March 7.

But “political speech or political action typically is not protected concerted activity in the workplace. It’s got to be related to terms and conditions of employment,” he told Bloomberg BNA March 3.

The agency that administers the NLRA, the National Labor Relations Board, said political action isn’t protected in a guideline memorandum issued in 2008. Reacting to a wave of strikes relating to immigration policy, the NLRB’s general counsel distinguished between political disputes and labor disputes.

“As a matter of enforcement policy under the Act, we do not want to equate political disputes with labor disputes, or promote the use of strikes and similar activity for resolving what are essentially political questions,” then-general counsel Ronald Meisburg wrote.

“It could be broad,” Spitz said. “It could be six degrees of separation, but it’s got to have a workplace connection,” he said. Without that nexus, there is no protection under federal labor law. And without protection, “I think that there is not going to be a violation if they terminate” someone who skips work to participate in the day without a woman.

Not a Traditional Strike

“When you think about how a strike normally would happen, they were really aimed at specific workplaces,” Michelle Rodino-Colocino, a New York City-based organizer and founder of Strike 4 Democracy, told Bloomberg BNA March 6. “Maybe you had a sympathy strike where workers in an industry would support brothers and sisters in the industry. Now, the Women’s March and Women’s Day—we’re actually using a strike to find changes in the political process.”

Organizers of the Jan. 21 Women’s March, in which millions of demonstrators in Washington and cities around the world donned pink hats in the shape of pussycat ears, called on supporters to strike on International Women’s Day, which occurs March 8 every year. The “Day Without a Woman” protest called on participants to take the day off from paid or unpaid labor. Other ways organizers suggest people can participate are by abstaining from shopping anywhere except small businesses owned by women and minorities or wearing red in solidarity.

The strike, which has its own Twitter hashtag, follows other work stoppages that have arisen in reaction to positions advanced by President Donald Trump regarding women, immigrants, and minorities. Many foreign-born residents, for example, skipped work Feb. 16 on “A Day Without Immigrants.”

A chain of restaurants in the Washington, D.C., area also closed on Feb. 16. Busboys and Poets owner Andy Shallal is an Iraqi-born U.S. citizen. “In solidarity with our immigrant tribe we will close for” the day without immigrants, the business wrote on its Facebook page Feb. 14. It said there would be work available for employees who still wanted the opportunity to earn money.

Workers who wanted to participate in the protest may have been delighted to learn they had their boss’s support. But is an authorized strike still a strike, or is it more like an excused absence?

Strikes that make room for workers to withhold labor if they are able, or work if they need to, are perfectly fine to Dania Rajendra, a labor professor at the Cornell University Industrial and Labor Relations School. “Our own history in the U.S. and around the world is rife with many forms of strikes, and like all forms of social protest it is constantly evolving as conditions evolve,” she told Bloomberg BNA March 6.

“Ensuring that there are many ways of participating is a hallmark of this moment,” she said. “In all of these demonstrations, both the more spontaneous and the more planned ones, the organizations are more thoughtful in ensuring there are as many ways to participate as possible.”

Business Decisions Belong to Employers

Still, employers get to make decisions regarding operation of the business. One of their rights in any workplace is to determine whether and when the business will be open, said Bob Kilgore, who is of counsel in management law firm Fisher Phillips’s San Antonio, Texas, office.

“The employer inherently has the right to establish the terms and conditions of employment and determine as part of its management rights if it’s going to be open or closed,” he told Bloomberg BNA March 3. “That owner’s right, to me, is an inherent managerial right to determine whether you’re going to stay in business day to day.”

But rights and laws are only part of what make a workplace successful. Appearances are important too, Kilgore and Spitz said. “There’s always the optics of taking an adverse action against someone because of their political position,” Spitz said March 3.

“I don’t see it so much as a legal issue,” he said March 7. “This is employee relations.”

“If your employees like you and trust you, they’re much less likely to sue you, whether it’s for this or something else. How you handle this is much more likely to impact other areas you find yourself in with your business,” Spitz said.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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