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Plan for Employee Absences so May Day doesn’t become “Mayday!”

Strike! In a call for solidarity, local and national civil rights groups and labor organizations across the country have announced a general strike on May 1, 2017 for employees across all employers in every industry. While some are demanding a “living wage,” the strike, by most accounts, is designed to call attention to the immigration and refugee policies of the Trump administration. Indeed, the City of Seattle unanimously passed a resolution proclaiming May 1, 2017 “a day of action for worker and immigrant rights,” which permits city employees to take the day off “as a matter of conscience to attend these activities.” By some estimates, upwards of 400,000 workers may engage in this one-day strike next week. Regardless of the extent, however, each employer should be prepared to address a potential job action in its own workplace.

In the event employees do strike on May 1, employers should be careful about immediately meting out discipline. Section 7 of the National Labor Relations Act protects an employee’s right to engage in concerted activities concerning the terms and conditions of employment or for other mutual aid or protection. This right applies equally in both union and non-union workplaces and may protect employees from being disciplined for engaging in a strike. As a cautionary tale, a National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) recently found that Walmart violated its employees’ Section 7 rights in a similar situation. Walmart assessed points under its attendance policy to employees who engaged in a 1-3 day “Ride for Respect” strike, in which employees were encouraged to leave work and protest at Walmart’s annual shareholders’ meeting to demand higher wages and benefits. After losing at the ALJ level, Walmart appealed to the NLRB and, 4 years later, the case is still pending.

While Section 7 does not protect purely political demonstrations, it can be difficult to show that a job action is purely political. For example, work stoppages in the 1980s protesting the Soviet Union’s invasion of Afghanistan were found not to be purely political and therefore protected by Section 7. Immigration reform has been found to be sufficiently connected to the terms and conditions of employment, and therefore protected. Because the NLRB for the time being continues to be sympathetic to employee rights, employers should be cautious about imposing disciplinary action on striking employees.

The May Day activities do not give employees free rein to skip work, however. Employers can still insist that their employees follow normal call-off procedures. If, for example, existing policies require advance notice of a planned absence, employees should not be permitted to wait until the start of their shift on May 1 to call off. Employers should ensure that such policies are up-to-date, and that they have been consistently enforced in the past before relying on them to issue discipline.

Additionally, employers may not have to pay employees who fail to report for duty on May 1. Hourly employees, of course, are not entitled to receive pay if they take the day off – and the same may also be true for an employer’s salaried staff. The Fair Labor Standards Act and the Michigan Workforce Opportunity Wage Act permit employers to reduce a salaried employee’s pay for a full (but, not partial) day’s absence, without jeopardizing that employee’s overtime exempt status. If, however, an employee has available paid time off and complies with an employer’s normal procedures for using that PTO, he or she should be permitted to use PTO for the absence.

Because it can be difficult to predict how any one employer will be affected by the May Day strike, it would be prudent for all employers to make some preparations in advance.

      • To ensure that operations are not affected, employers may want to have some employees in reserve, to be called in to fill unanticipated vacancies.
      • Employers should also ensure that their call-off and paid time off procedures are up-to-date and that managers and supervisors are familiar with those procedures.
      • Finally, employers should inform front-line managers of the company’s response to a walk out. While it is ok to let an employee know that he or she may not be paid for the time off, managers should be careful not to indicate that employees will be disciplined for strike activities. Any such comments or actions could be used as evidence of union animus to support a subsequent unfair labor practice.

For specific advice in any particular situation, employers should contact a Nemeth Law, P.C. attorney.

Image credit: pixabay

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