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. 

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