"May Day" Demonstrations are Imminent: Lawful Employer Responses to Advocacy

By Patrick D. Lawler and Kimberly J. Korando

According to leaders of the Service Employees International Union, the Food Chain Workers Alliance, the Rural Community Workers Alliance and other labor groups, upwards of 350,000 workers are planning on striking or protesting Monday, May 1, in opposition to certain policies set forth by the Trump Administration. These demonstrations come on the heels of the “Day Without Immigrants” strike of February 16, the “A Day Without a Woman” strike of March 8 and the “Pi Day” protest of March 14 – three nationwide strikes and protests similarly targeted at the Trump Administration.

May 1, known as “May Day,” is International Workers’ Day, and labor groups have traditionally held nationwide May Day strikes and protests in support of various pro-employee causes. In a departure from past May Day strikes and protests, it is anticipated that the demonstrations this May Day will not directly target employers, but instead will be in opposition to the Trump Administration’s stances on immigrants, women, the Muslim community, public education, climate change, health care, the LGBTQ community and a host of other political issues. It has been claimed that both blue- and white-collar workers across all industries and in all fifty states will strike and protest on May Day.

NLRB’s Position

Under the National Labor Relations Act (“NLRA”), employees have the right to engage in concerted activities for the purposes of “mutual aid or protection.” Generally, the NLRA only protects activity that somehow relates to the terms and conditions of employment (such as wages or working conditions). Employers may not discipline or threaten to discipline employees for exercising their right to engage in concerted activity for these purposes.

Political advocacy, rather than activities targeted at a particular employer’s policies, may not fall under the purview of the NLRA. Only if there is a “direct nexus” between the issues that are the subject of political activity and employment could the political advocacy be considered protected activity. The current National Labor Relations Board (“NLRB”) views this “nexus” issue broadly, and cautious employers should assume that advocacy targeted at particular political stances is sufficiently related to workplace conditions to be protected activity under the NLRA.

Even if employees’ political advocacy is assumed to be protected activity, employers may still retain the authority to manage employees who choose to participate in such political advocacy. The NLRA does not protect all means an employee may use to carry out political advocacy. According to the NLRB, engaging in political advocacy is not protected activity when such activity is directed against an employer who has no control over the political objective. Therefore, while political issues such as repealing the Affordable Care Act or equal pay legislation may arguably be sufficiently employment-related, an employer most likely does not have control over the political objective sought, and employees striking for these issues may be disciplined. In such circumstances, leaving work or refusing to show up for work to take part in political advocacy relating to employment concerns may be subject to restrictions imposed by lawful and neutrally-applied work rules.

Guidance for Employers

Employers may take action against employees who participate in the upcoming May Day protests in accordance with neutral work rules, as long as the subject of the strike is not in the employer’s control. Concerns with Trump Administration policies on the environment, public education, healthcare, minority relations and the like are almost certainly unable to be resolved by a particular employer. As a result, employers may treat May Day absences for the purposes of striking or protesting against these issues the same as any other attendance violation. The essential point to remember is that employers must treat these striking or protesting employees no worse than employees who miss work for all other reasons.

If employees are protesting or striking against political issues which are not under the control of the employer, employers should adhere to the following Do’s and Don’ts:

May Day Strike Employer Do’s and Don’ts:

• DO apply your workplace policies neutrally. For instance, if a striking employee failed to call in prior to missing work, apply the normal no-call/no-show procedures. 
• DO advise employees of attendance policies and repercussions for missing work. 
• DO remind employees that they remain subject to attendance policies, just as if they were missing work for any other reason.
• DO allow employees to use paid time off or accrued vacation time in accordance with your normal policies and procedures. 
• DON’T ask an employee why they missed work or why they were planning to be absent on the day of the strike or protest, if you do not normally do so. 
• DO ask an employee which cause they were protesting or striking against if the employee offers that they missed work to participate in a protest or strike. If the reason was one arguably under the employer’s control, do not discipline the employee. 
• DON’T get caught understaffed. Employers should have a contingency plan to ensure operations are not disrupted in the event of multiple employee absences. Employers can create an on-call list or alert temporary staffing agencies that their services may be necessary.
• DON’T discipline an employee who participates in a strike or protest off-duty, on their own personal time. 
• DON’T ban political discussions in the workplace. Political conversations should be treated like any other. Employers may enforce rules requiring employees act with civility and respect, however. 
• DON’T neglect to consider employee morale and other practical considerations: even if legally permitted, some employers may decide to refrain from counting absences against employees who choose to speak out politically. Many employees may harbor strong convictions about the political issues, some of which may be deeply personal.

All employers should exercise caution and refrain from disciplining an employee for participating in a strike or protest that is even arguably related to an issue of the particular employer’s workplace. Whether an underlying political cause relates to an employer-specific matter and/or whether this matter may be resolved by the employer is often a complicated determination.

If you have any questions about how to handle political demonstrations or workplace strikes, please contact the Smith Anderson lawyer with whom you normally work.