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HR ALERT - Addressing the Work Stoppage Urged for May 1, 2006

Volume 5, Issue 4
April 26, 2006

The national debate regarding unlawful immigration has recently led to numerous protests and rallies, including the "A Day Without An Immigrant" work stoppage planned for May 1, 2006. Organizers of this event urge individuals to boycott work and commercial establishments on May 1 and/or to wear white arm bands to demonstrate their support for the cause.

Employers are advised to be cautious in responding to employee activities surrounding this and other protests because personnel actions will undoubtedly be subjected to intense legal and public scrutiny. Indeed, participating in the work stoppage or otherwise supporting it, by for example, wearing an armband, may constitute protected concerted activity under Section 7 of the National Labor Relations Act. This provision applies to all employees (even those who are not unionized) and broadly protects their rights to individually, on behalf of others, or together (two or more employees) engage in conduct designed to improve or change their terms and conditions of employment. Employees disciplined after April protests have already purportedly filed charges with the National Labor Relations Board claiming their Section 7 rights have been violated. While it is unclear how the Board will interpret conduct related to May 1st, Nevada employers should understand that the Ninth Circuit has previously enforced a decision by the Board that political speech involving the impact of immigration laws on the workplace may be protected by Section 7. See Kaiser Engineers, 213 NLRB 752 (1974), enforced, 538 F.2d 1379 (9th Circuit 1976). This decision may be relied upon by Nevada employees seeking protection for May 1st conduct.

Some employers may be willing to support employee involvement in the May 1st event and agree to adjust schedules and make other accommodations so that employees can express their views. Others may prefer to remain neutral. We have developed the following tips to assist all employers in approaching May 1:

  1. Unless you decide to make accommodations for employees wishing to participate, consistently apply your attendance and leave policies to employee call-outs;
  2. Consider issuing a memorandum to all employees acknowledging the Company's awareness of the planned event and reminding employees to use the Company's leave and attendance procedures if they wish to be away from work on May 1;
  3. If you have a collective bargaining relationship with a union, review your contract for its attendance, leave, and possible no-strike clauses, and communicate the Company's expectations to the union, confirming your conversation(s) with a letter;
  4. Prepare for absenteeism and call-outs in advance;
  5. Meet with managers and supervisors to advise them of the Company's approach to and how to address requests for time off, call-outs, and signs of support associated with this event;
  6. Designate one person, preferably a Human Resources Manager or General Counsel, to be responsible for making immediate decisions with regard to personnel issues which relate to May 1;
  7. Carefully document personnel issues that arise because of May 1 and direct supervisors to do so as well; be sure to document the "why" of what an employee is doing (e.g., if an employee is calling in sick or leaving work, document his/her stated reason if one is given);
  8. Investigate all purported violations of attendance, leave or other rules before issuing discipline or terminating an employee and engage in the just cause analysis by ensuring that proper notice was given, the rule is reasonable, a thorough and fair investigation was conducted, a violation has occurred, and any penalty assessed is consistent with past practice and appropriate; and
  9. Carefully consider and weigh the legal issues associated with disciplining employees for conduct related to a protest or rally. As set forth above, discipline may impact employees' rights under Section 7 of the National Labor Relations Act.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.