The National Labor Relations Board (NLRB)’s general counsel ruffled a few feathers last month by finding that employees who skip work to protest could be protected from termination under the National Labor Relations Act (NLRA). This has the potential to be a pretty startling finding for employers with politically active employees . . . so let’s dig a little deeper to see what happened:
One of the NLRB’s counsel memos took up the topic of employees who did not come to work in order to participate in a “nationwide day of action” called “A Day Without Immigrants,” protesting the Trump administration’s recent immigration policies.
Here’s what happened: 18 Mexican employees of EZ Industrial expressed their interest in participating in “A Day Without Immigrants” to protest the Whitehouse’s recent crackdown on undocumented immigrants living and working in the U.S. EZ Industrial management told the Mexican employees that the company would not be able to meet customer needs if the 18 workers did not come to work, and that, if the workers failed to show up for work, they would be fired. The NLRB cried foul.
Here’s why: The NLRB memo found that the Mexican employees’ participation in the “Day Without Immigrants” fell squarely within Section 7 of the NLRA’s protection of “concerted activity” for the purpose of “mutual aid or protection” to improve working conditions or terms of employment. The NLRB further found that Section 7 protection “extends to concerted political advocacy” when the subject matter of that advocacy has a direct nexus to employees. Translation? Since the Mexican workers were protesting for “mutual aid and protection” of themselves and other immigrant workers subject to possible raids and discrimination in the workplace, the “Day Without Immigrants” was protected activity under the law.
More Translation? The key to the NLRB’s analysis on the “mutual aid and protection” piece and the “Day Without Immigrants” protest focuses on the goal of the employees’ concerted activity. Specifically, “whether there is a link between the activity [the protest] and matters concerning the workplace for employees’ interests as employees,” is the key point. This includes employee efforts to “improve their lot as employees though channels outside the immediate employee-employer relationship,” as well as activities “in support of employees of employers other than their own.” In the EZ Industrial case, participation in the “Day Without Immigrants” was in response to concerns about immigrant status in the workplace (concerns about workplace raids, unfair enforcement of policies and lack of ongoing opportunities for immigrants in the workplace).
What now? The NLRB memo is a reminder to employers to weigh the facts – and probably contact counsel – before making termination decisions in response to employee activity like protests. After all, EZ Industrial fired these workers because they were warned that if they didn’t come to work they’d lose their jobs. Seems pretty clear. Unfortunately, the NLRA grants pretty broad (and very fact specific) protections to employees. Better safe than the subject of an NLRB counsel memo, I say.
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Bryan Dench, Amy Dieterich, Jordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters. You can contact us at 207.784.3200. Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.