A Day Without Immigrants

Today is a planned “Day Without Immigrants” protest/strike. Employers all across the U.S. are struggling to find a balance between their business operations and respecting their employees’ opinions on immigration and other social issues. We have been fielding calls all morning regarding employer rights/responsibilities and have the following thoughts:

The legal issue is primarily the right of employees to engage in “concerted activities” for the common good of their fellow employees. This principle is articulated in the National Labor Relations Act and an employer’s interference with that right can lead to the filing of an Unfair Labor Practice Claim.

Some employers embraced this protest by closing for the day and/or actively supporting their employees who choose to participate.

Other employers are not opposed to an employee’s right to participate, but feel that a “no call/no show” or walkout for any reason is a violation of absence policies subject to discipline.

My opinion is that either of these approaches can be correct based on the circumstances. For businesses that rely heavily on an immigrant workforce, support of this action can create goodwill between employees and the company.  That’s a business decision and certainly complies with the strictest interpretation of the NLRA.

On the other hand, this event has been planned for months and employees who wanted to participate could have requested the time off (which would have been protected by the NLRA), rather than declaring on the actual day that they would not be at work.  Although that works for the employee, it’s very inconsiderate to the employer and coworkers who have to cover the work of the absent employees. Although there is a higher risk of an NLRA violation, I believe that disciplining an employee for violating an absence policy (if unrelated to and independent of why the employee was absent) is an acceptable response.  Employee rights do not have to come at the expense of an employer’s business operations, especially if there was a simple way of avoiding it by requesting the time off in advance.

-David Blaine, Esq.