Political Strike Guidance for Employers: Preparing for ‘Strike for Black Lives’

Faegre Drinker Biddle & Reath LLP

On July 20, 2020, organizers and labor organizations across the country are planning a “Strike for Black Lives” — a national walkout of workers in support of “dismantling racism and white supremacy to bring about fundamental changes in our society, economy and workplaces.” Before any political strike occurs, employers should develop a response strategy to limit liability and keep their businesses running.

An important part of keeping your business running is understanding the legal rights your employees have to participate in a one-day political strike. The National Labor Relations Board (NLRB) has interpreted the National Labor Relations Act (NLRA) to provide important protections to employees who engage in these kinds of strikes, and employers should respect that interpretation and respond accordingly.

The NLRA Protects Political Strikes

The NLRA protects employees’ rights to engage in concerted activity, including the right to strike, when the purpose of that concerted activity is to improve the terms and conditions of their employment. This “protection” means that an employer cannot discipline or discharge an employee for engaging in concerted activity.

The NLRB has interpreted the NLRA’s protection of concerted activity broadly to include strikes for political purposes. The NLRA will protect a political strike if: (1) the purpose of the strike has a “direct nexus” to employee working conditions and (2) the employer has some degree of control over the objective of the striking employees. To understand why the NLRB is likely to view the one-day “Strike for Black Lives” as protected, it is helpful to look at another political day of action, the 2017 “Day Without Immigrants.”

On February 16, 2017, employees across the United States engaged in a strike against President Donald Trump’s policies designed to crack down on undocumented immigrants living in the United States, including the possible revival of workplace raids by immigration authorities. In a 2017 Advice Memorandum, the NLRB general counsel found that this strike was protected by the NLRA. The general counsel found that the strike had a “direct nexus” to employee working conditions because aggressive immigration enforcement plainly threatened the job security of unauthorized workers and likely caused employment standards and working conditions to deteriorate for all workers. The General Counsel also found that employers had sufficient control over the strike’s objectives. While a single employer could not individually control the administration’s immigration agenda, it could “take a stand with hundreds of other companies” to influence the administration to change course and take steps within its own workplace to address the striking employees’ concerns.

If the NLRB’s protection of the “Day Without Immigrants” strike is any indication, the NLRB is likely to find that employee participation in a “Strike for Black Lives” — the goals of which include demanding corporations take immediate action to dismantle racism within the workplace and highlighting the importance of unions to the workplace — constitutes protected concerted activity.

What Does This Mean for Employers?

Most importantly, it means that employers should generally not discharge or discipline employees for participating in the “Strike for Black Lives.” It also means that employers should not engage in conduct designed to discourage or frustrate employee participation in the day of action.

Instead, employers should plan to manage around any operational challenges that the day of action may cause. Employers should ensure that all front-line supervisors are aware of potential absences and take steps to staff their workplaces to account for missing personnel. Employers should also advise front-line supervisors (a) not to broach the issue with employees in advance, (b) carefully note any reasons cited for strike-related activities, and (c) carefully consider disciplinary action before dispensing it.

Additionally, national planned strikes, like this one, are often used by unions for recruitment purposes. Employers with non-unionized workforces should consider providing training to supervisors and managers on how to discuss unionization with their employees.

In sum, a combination of personnel planning and supervisor discipline and flexibility are the key for employers to effectively, and legally, manage political protests.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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