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With or Without You: Dealing
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WITH OR WITHOUT YOU:  DEALING WITH “DAY WITHOUT” ABSENCES FROM WORK

Submitted by the Labor & Employment PAC

By: Carolyn Rashby, John Feldmann & Oswald Cousins, Miller Law Group

“A Day Without Women.” “A Day Without Immigrants.” “Fight for Fifteen” strikes. Across the nation, workers are either failing to report to work or walking out on specified days, to draw attention to economic and social inequalities. Many employers have been supportive of the protests and some have even closed their businesses in solidarity. Other employers have disciplined or terminated employees who participated. 

Over the coming year, employers can expect similar protests, such as a second “Day Without Immigrants” that is in the works for May 1, International Workers’ Day. What legal and practical risks should employers consider before they discipline employees for participating in these events? Here’s an overview of what employers should know about how to navigate “Day Without” and similar demonstrations.

NLRA Considerations

A key consideration is whether “Day Without” or similar activity is protected under the National Labor Relations Act (“NLRA”). The law here cuts both ways. If employees are covered by a collective bargaining agreement with a no-strike clause that states employees will not engage in strikes, slowdowns, or other job actions during the life of the agreement, then employees who skip work might be in violation of a no-strike clause in a collective bargaining agreement -- although keep in mind that a host of other legal protections may still apply (see below).

For employees not covered by a union contract, employers must consider whether the conduct amounts to “protected concerted activity” under the NLRA. The NLRA gives non-union employees the right to engage in conduct for their mutual aid or protection regarding terms and conditions of employment.  Thus, protests based on arguably work-related issues -- including last year’s “Fight For $15” walkouts demanding that fast food restaurants and retailers raise their minimum wage, or “Day Without Women” protests which, among other things, highlight the gender wage gap -- would constitute protected activity. Even still, an employer that has a consistently applied zero-tolerance policy for no-calls, no shows, may be able to take action.  But if the policy has not been consistently applied (which is the case, more often than not) or the employer doesn’t have a clear policy, any discipline likely will run afoul of the NLRA. Employers should also note that protests that are not based on a work-related issue, e.g., a purely political issue, would probably not be protected under the NLRA.

Political Activity and Other Legal Protections

In addition to NLRA concerns, employee participation in “Day Without” or similar activity may be protected under a California Labor Code provision that bars employers from making or adopting any rules or taking any action that would force employees to follow or refrain from any political action or political activity. Likely, an employee’s participation in “Day Without” events would amount to protected political activity. California law also protects lawful off-duty conduct.

This does not mean that an employer’s hands are tied if employees are absent in violation of the company’s attendance and time off policies. In anticipation of protest conduct that involves unexcused absences, an employer with a neutrally applied policy should remind employees of the policy and inform them that they may be disciplined for an unexcused absence. Employers, however, need to exercise caution and ensure that such policies are enforced consistently. For example, if the employer excused employees who missed work to celebrate their sports team winning the World Series, but then disciplined those who missed work to participate in a “Day Without,” the employer could face liability for punishing employees for engaging in protected political activity, protected concerted activity, or even charges that the employer was motivated by national origin or gender discrimination. California also has strong protections against immigration-related discrimination and retaliation.

Employers should also note that “Day Without” participation could involve activity other than failing to show up for work. For example, protests may involve workplace conversations, distributing literature, picketing, social media on the employer’s platform, and more -- and, depending on the circumstances, such activity could, like the walkouts, amount to legally protected activity. Thus, before taking action, employers should consider whether the conduct took place in non-work areas, whether it was during non-work time (before or after shift, rest and meal periods), whether non-employees were involved in workplace conduct, and whether the safety of non-protesting employees or the public was jeopardized by the conduct. 

An employer should also consider how deeply its employees believe in the cause they are supporting before possibly alienating them with discipline that may be legal, but nonetheless offensive to the employees. That same consideration should be given to the possible impact that the employer’s actions could have on its customer base.

What To Do?

Before taking adverse action against employees who participate in “Day Without” protests or activities, or similar events, employers should consult with their legal counsel to determine what laws apply and what options the employer may have. Employers should also give careful consideration to how their response to employee “Day Without” and comparable activity could impact the business.

 

Carolyn Rashby is a partner with Miller Law Group in San Francisco. Miller Law Group represents businesses in all aspects of California employment law and related litigation. Ms. Rashby's practice focuses on strategic advice and counsel, as well as education and training on employment law issues for in-house counsel and human resource professionals.

 

 

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