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Friday, February 17, 2017

Employers How To Handle “Day Without” Protest Strikes

 By Thomas Eden

As politics spill over into the workplace, this is common sense counsel on how to react:

Question: This week we’ve had immigrant strikes, and there has been talk recently about a “Day Without a Woman” strike that might take place next month. What recourse does an employer have? Would a strike like this be “protected concerted activity,” which means that the employer might not be able to take adverse employment action against a participant?

Answer: It depends. The National Labor Relations Act (NLRA) defines protected concerted activity as any action taken by two or more employees for the mutual aid and protection of workers (or action taken by one employee on behalf of other employees). Protected actions must somehow relate to the terms and conditions of their employment. Practically, this can mean discussing their wages or working conditions, bringing complaints to management’s attention, or taking part in organizing activities. It can also mean airing their grievances publicly — for example, by posting negative information about their employer online, engaging in a strike, or speaking to news organizations.

As a corollary, while the Act gives the employees these rights, it also generally restricts employers from taking any disciplinary action against employees for exercising them. Thus, when an employer restrains an employee from engaging in protected concerted activity with discipline or threat of discipline, it generally commits an unfair labor practice unless the right to engage in the activity has been waived, for example, by a no-strike provision in a collective bargaining agreement. That can eventually end you up before the National Labor Relations Board.

Question: If an employee wanted to take the day off work to participate in the strike and gave the employer reasonable notice, and maybe even had Paid Time Off or vacation time available, should the employer let the employee take the day off for that purpose? Even if the employer disapproves of the idea of a “strike”?

Answer: If the employer would normally allow an employee to take the day off under its policy, then it would in all likelihood need to allow it for the strike, as well. Otherwise, the employer runs the risk of being accused of discriminatorily applying its policies and procedures, in a direct effort to prevent an employee from engaging in protected concerted activity.

Question: Does it make any difference if the employee taking the day off (either with or without notice) is a member of management, as opposed to a non-management employee?

Answer: The NLRA applies only to non-supervisory employees, and accordingly, supervisors (and managers) are not entitled to the Act’s protections.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at or 334-246-2901. This advice was given by my Partner Leigh Tyson in a bulletin to all Constangy clients this week. Blog at with link to full bulletin.