Tuesday, February 21, 2017

"A Day Without Immigrants" protests followed by days without work for fired employees

Last Thursday, in protest against President Trump’s immigration policy, people nationwide participated in “A Day Without Immigrants.” As part of the protest, many businesses closed their doors to show what our nation would look like without immigrants. In addition, many immigrants simply did not go to work.
As a result, many now find themselves unemployed.

From KTUL.com:
A dozen workers at a Catoosa restaurant are without a job after getting fired for skipping work as a show of support for “A Day Without Immigrants.” 
The restaurant workers are all Hispanic and say it was important to them to participate in the national protest. … 
Restaurant owner Bill McNally gave us a written statement, saying he has a “zero tolerance policy for no show/no call incidents and the 12 employees violated that policy.”
Generally speaking, employees working in the private sector do not enjoy free speech rights, and can be fired for what in the public sector would be protected as freedom of expression under the 1st Amendment. I say generally speaking, because there exists a pesky little statute called the National Labor Relations Act, which, under the right circumstances, protects employees who engage in political advocacy.

In Eastex, Inc. v. NLRB (1978), the Supreme Court held that Section 7 of the NLRA protects employees when they seek to “improve their lot as employees through channels outside the immediate employee-employer relationship.” More specifically:
The “mutual aid or protection” clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to … appeals to legislators to protect their interests as employees … . To hold that activity of this nature is entirely unprotected—irrespective of location or the means employed—would leave employees open to retaliation for much legitimate activity that could improve their lot as employees.
Thirty years later, the NLRB expounded upon these principles in a General Counsel Memorandum, Guideline Memorandum Concerning Unfair Labor Practice Charges Involving Political Advocacy [pdf], which specifically addresses protections for employee protests for immigration law reforms. It offers some good news for employers.

The memo discussed three categories of political advocacy by employees—non-disruptive political advocacy, on-duty political advocacy, and leaving or stopping work to engage in political advocacy. Each receives a different level of protection (or non-protection):
  • Non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern, which takes place during the employees’ own time and in non-work areas = protected
  • On-duty political advocacy for or against a specific issue related to a specifically identified employment concern = subject to lawful and neutrally applied work rules
  • Leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern = subject to restrictions imposed by lawful and neutrally-applied work rules
What does this mean for the 12 employees fired by the Catoosa restaurant? If the employer has a bona fide and consistently applied zero-tolerance policy for no-call/no-shows, then the NLRA likely does not protect those employees for their participation in the “Day Without” strike. If, however, the employer doesn’t have a policy or it is inconsistently applied, the employer may have NLRA issues resulting from the terminations. 

Last week’s protest was the first “Day Without…” planned. Yesterday brought the “Not My President’s Day” rallies around the country. “A Day Without Women,” is set for March 8, which may raise Title VII sex discrimination issues if you choose that day to start disciplining employees for political advocacy. If, however, you plan to hold employees accountable for their political activities that draw them away from work without permission, now is as good a time as any to review your work rules to ensure they will permit that accountability.