Client Bulletin #605

2.15.17

Many of you may have already heard of a potential national immigration protest scheduled for tomorrow, Thursday, February 16. Immigrant employees and students are being encouraged to stay home, immigrant-owned business to remain closed, and customers to refrain from making purchases. This is not false news. For employers this situation raises legal issues that you should be aware of.

The protections of the National Labor Relations Act are not limited to unionized employees. The Act also protects concerted activity unrelated to union organizing, specifically activity engaged in for “other mutual aid or protection.” The planned protest may be protected concerted activity. Therefore employers should refrain from taking action against employees who participate in, or encourage others to participate in, the scheduled refusal to work because of the exercise of their protected rights.

The protection that the NLRA provides to concerted activities, however, is not absolute. For instance, inappropriate behavior or destruction of property should be carefully investigated and documented. If a valid, uniformly enforced attendance policy is in place, its provisions might be implicated. Employers should not try to assess appropriate disciplinary measures before or during the walk-out. In addition, it is strongly suggested (although, admittedly, self-serving) that you discuss any proposed discipline with counsel before taking action.

Another approach to consider is to take this “lemon” and use it to make “lemonade.” While recognizing the inconvenience and adverse economic consequences to your businesses, take this opportunity to let your employees know that you are aware of the valuable contributions that immigrants in this country make each day, their concerns for their families and their well-being, and their desire to make those concerns known. By recognizing their value and concerns, the benefit to your employment relations in the long run may well exceed any harm caused by the protest.

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