Preparing for May Day: employee political protest

April 23, 2017

Employment Law Alert

Author(s): Andrew B. Prescott, Jessica Schachter Jewell

On May 1, 2017, employees across the country, some fueled by anti-Trump fervor, will participate in “May Day” or “International Workers’ Day” rallies and protests. Employees may engage on May 1 in a variety of activities at or away from the workplace in solidarity with organized labor and other workers’ rights organizations. As on recent “Day without . . . ” days, employees will be attending rallies and marches, donning buttons or apparel to convey political messages and speaking out on social media. Employers must respond to such conduct carefully and avoid violating the National Labor Relations Act.

The Act protects workers’ rights—whether unionized or not—to engage in activities together for mutual aid or protection. On May Day, if employees participate in activities (e.g., rallies or organized protests) with a close connection to such employees’ own employment concerns, the activities are protected by the Act. For example, quick-service restaurant workers attending rallies for the $15 minimum wage are engaged in protected conduct.

Even when employees engage in protected activity, however, employers retain some rights to enforce lawful and neutrally applied work rules. Fraudulent use of sick time for “May Day flu” is no more protected than calling out sick to go to opening day at Fenway. An employer may deny the right to use paid time off for May Day pursuant to an existing rule that limits the number of employees off at a time or requires an employee to request the time off sufficiently in advance to allow the job to be covered by someone else. While employees have the right to solicit co-workers during non-working time to join May Day causes, employers may enforce rules barring such solicitations during working time.

Some employers may encounter unauthorized absences, no call/no shows or even organized walkouts on May Day. The National Labor Relations Board issued guidance in 2008 suggesting that such conduct deserves less protection than when employees strike to gain something specific from their own employers. Even work-stoppages involving specific demands to the struck employer can lose protection when such stoppages create risk of imminent harm to property, persons, or operations. But employers disciplining May Day activists for a rules violation or misconduct should proceed with extreme caution and should not treat May Day participants more harshly than other employees in similar situations not involving arguably protected conduct. Discriminatory discipline of an employee engaged in protected conduct violates the Act’s § 8(a)(3) prohibition against discriminating to encourage or discourage membership in any labor organization.

It’s important to plan for May Day. When planning, consider both the potential legal and public relations ramifications of taking adverse employment action against employees involved in May Day. Managers and supervisors should understand the plan, and avoid knee-jerk reactions to employees’ conduct. Employers should certainly avoid reacting in a way that suggests that the objections to May Day motivated their decision-making.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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