Several labor organizations, along with racial and social justice organizations, conducted a mass walkout on July 20, 2020 to protest racial inequality and working conditions in the United States. Thousands of workers in more than 200 cities walked off the job on a full-day strike while others who were unable to strike for a full day walked out about for eight minutes. According to the Strike for Black Lives website, the purpose of the strike was to demand higher wages, better jobs, the right to unionize, and healthcare for all. These organizations specifically call for corporations to address racism in the workplace, raise wages, provide healthcare, and provide ample personal protective equipment (PPE), among other things.
These types of mass walkouts raise several considerations for employers as they attempt to balance their support for racial and social justice with their tolerance of competing views and their need to maintain operations. While some employers may allow their employees to participate with little to no disruption to their operations, others, such as hospitals, will have to find ways to continue to run their operations (perhaps by hiring temporary workers) if they find themselves with reduced staff. Other employers may be forced to temporarily close or take other measures to manage the sudden loss of available employees.
Importantly, regardless of whether employers support or oppose these mass walkouts or the underlying changes they seek to advance, employer responses to these types of mass walkouts likely will be subject to certain limitations under federal law. Under the National Labor Relations Act (the "Act"), employee participation in the mass walkout may be protected. Section 7 of the Act grants employees the right to engage in "concerted" activities for the purpose of "mutual aid or protection." Section 7 of the Act; see also Advice Memo (August 30, 2017). The latter element "focuses on the goal of the concerted activity," specifically, "whether there is a link between the activity and matters concerning the workplace or employees' interests as employees." Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip op. at 3 (Aug. 11, 2014). The National Labor Relations Board ("Board"), the federal agency responsible for enforcing the Act, analyzes whether an activity is for "mutual aid or protection" using an objective standard; thus, employees' subjective motives are irrelevant. Id. Critically, these rights under the NLRA cover both unionized and non-unionized employees.
The "mutual aid or protection" clause protects employee efforts to "improve their lot as employees through channels outside the immediate employee-employer relationship" as well as activities "in support of employees of employer other than their own." Eastex, Inc. v. NLRB, 437 U.S. 556, 559-60, 565 (1978). Thus, the Board has long recognized that Section 7 protection extends to concerted political advocacy when the subject matter of the advocacy has a direct nexus to employees' "interests as employees," based on the totality of the circumstances. Id. at 565-67.
Here, it is likely that employee participation in these types of mass walkouts falls within the scope of the "mutual aid or protection" clause because they seek better working conditions, including racism-free workplaces, higher wages, paid sick leave, and PPE and therefore have a direct nexus to employees' interests as employees.
Employers should note that whether employee participation in political activity constitutes protected concerted activity is only part of the requisite analysis, as "conduct with a protected object may nonetheless be unprotected because of the means employed." For example, in Eastex, the Supreme Court in dicta suggested that employees who leave work in support of a political cause outside of their employers' control are not withholding their services as an economic weapon in the employment relationship and as such their activity is likely not protected. See Eastex, Inc. v. NLRB, 437 U.S. at 568, n. 18; see also General Counsel Memo 08-10. Moreover, the Board has found that the right to strike "is not absolute" or "without limitation." The Board found that striking employees were not engaging in protected activity because they failed to take reasonable precautions to protect their employer's operations from such imminent damage as foreseeably would result from their sudden cessation of work. See Bethany Medical Center, 328 NLRB 1094 (1999).
Here, while employers alone may not have the power to change society and achieve racial justice at a greater scale, the Board likely will find that these types of mass walkouts are protected political activity to the extent they are tied to employees' efforts to improve their terms and conditions of employment, which employers ultimately have the power to do. Moreover, pre-announced mass walkouts like the one on July 20, 2020 undercut any argument by employers that they were unaware of the walkouts.
At the end of the day, employers should be aware that they cannot discipline or retaliate against employees who engage in protected political activity while off-duty and on their own time. Employers, however, may take disciplinary action against on-duty employees, employees who call out sick, or those who are a no-call/no show consistent with their neutral work rules. In this regard, employers should ensure that their attendance policies have been applied and enforced consistently otherwise they might not be able to defend against disparate treatment allegations.
Finally, employers should keep in mind state and local laws that might apply to employee political activity. For example, California law prohibits employers from coercing, influencing or attempting to coerce or influence employees' political action or political activity or for disciplining employees for lawful off-duty conduct.
Employers should consult with experienced labor counsel to prepare and before disciplining employees to minimize the legal risks in connection with increased employee political activity in the current climate.
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