No. 363 - May
2, 2006
WATCH OUT! IMMIGRANT PROTESTS
MAY BE PROTECTED CONCERTED ACTIVITY
By Clif
Nelson
Atlanta,
Georgia
Yesterday was May 1 – the day of the Immigration Reform March. This boycott,
known also as the Day Without Immigrants, is intended to demonstrate the power
and the prevalence of immigrants in the United States workforce. Rallies were
staged across the country, and thousands of immigrant workers showed their support
for this cause by missing work and marching for immigration reform. Further demonstrations
are also being called for on “Cinco de Mayo” (May 5, which is this
Friday).
Obviously, this mass absenteeism has the potential to create a number of practical
problems for employers, and you may be dealing with those now. From a legal standpoint,
it may help you to know some of the risks associated with terminating or disciplining
your absent employees.
According to the National Labor Relations Act, an employer may not take action
against an employee for participating in “protected concerted activity.” The
Act does not just protect those employees who are already members of unions – it
protects all employees, whether they are unionized or not, provided that their
actions fall within one of several categories. One category of protection includes
those employees who are seeking mutual aid and protection in the workplace; in
light of the immigration rallies, and the group efforts being made for the benefit
of immigrant workers, this provision may present problems for employers.
If the rallying workers are viewed as engaging in protected concerted activity,
and if they are found to be engaging in that activity for the mutual aid and
protection of their co-workers, then any disciplinary action taken against them
could constitute a violation of the Act. Indeed, in the wake of the April immigration
rallies, many employees – who had been disciplined for missing work to
attend the demonstrations– filed unfair labor practice charges with the
National Labor Relations Board. If after an investigation those charges are found
to have merit, then reinstatement and backpay may be available.
Anticipating an influx of new charges following the May 1 and May 5 demonstrations,
the NLRB’s Office of the General Counsel recently issued an Operational
Memorandum addressing how the Regional Offices of the NLRB should proceed when
they receive charges filed by immigrant employees. The General Counsel has instructed
the offices to investigate each charge, and, at the conclusion of the investigation,
to send the case to the Division of Advice. The NLRB has given no indication,
however, as to whether it will find the rallies to be protected concerted activity,
or whether the participating employees are engaging in activity for the mutual
aid and protection of other workers.
The unions themselves have been vocal in their support for immigration reform,
and have expressed solidarity with the rallying workers. John Sweeney, international
president of the AFL-CIO, issued a statement noting that the AFL-CIO “must
support immigrant workers because supporting all working people is the core of
what it means to be a trade unionist.” Consequently, employers should also
be aware of the fact that, in some cases, unions may attempt to assist immigrant
workers in filing unfair labor practice claims. Additionally, some unions could
use any mass layoffs as an invitation to organize that employer.
Bearing all of this in mind, it is clear that employers must proceed with caution
when it comes to disciplining employees who choose to participate in immigration
rallies. The behavior of those workers may be protected by the Act, and any adverse
employment action could result in a charge and an investigation by the NLRB.
At the same time, however, employers must be mindful about creating precedent
in the workplace, and must ask what kind of effect discipline – or the
lack of discipline – will have on employee morale and expectations. There
is, obviously, a good deal to consider.
After weighing the options, many employers will choose consistency over accommodation.
In those cases, they will apply their usual attendance policies for absences
on May 1 and 5, and those employees who violate the policies will be disciplined
accordingly. This approach maintains the integrity of an employer’s rules
and ensures non-discriminatory treatment under Title VII and other fair employment
practices laws. Therefore, applying your normal policies may be the best method
for you and your workplace. One “principled” way to differentiate
would be to focus on whether the absent employee(s) gave prior notice of the
absence. However, even this will not necessarily provide cover if you want to
take disciplinary action. If the Board determines that participation in the rallies
is protected concerted activity, then an absentee policy will not serve as a
defense to an unfair labor practice charge. In that situation, any discipline
would be unlawful – regardless of what the attendance policy states, and
regardless of how consistently the policy has been applied.
If you were faced with absences yesterday, or if you anticipate absences this
Friday for the second set of demonstrations, please advise your contact attorney
at Constangy, Brooks & Smith. There is no simple answer to this predicament
so we are advising consultation when possible. In that regard, we are available
to discuss the particulars of the situation with you, and to help in whatever
way possible to minimize the effect of the immigration rallies on your business.
Constangy, Brooks & Smith, LLC has counseled
employers, exclusively, on labor and employment
law matters since 1946. The firm represents
Fortune 500 corporations and small companies
across the country. More than 100 lawyers work with clients
to provide cost-effective
legal services and sound preventive advice
to enhance
the employer-employee relationship. Offices
are located in Georgia, South Carolina,
North Carolina, Tennessee, Florida, Alabama,
Virginia, Missouri, and Texas. For more information about
the
firm's labor and employment
services, visit www.constangy.com, or call
toll free at 866-843-9555.
