The marches, protests and other forms of political advocacy expressing views about the new administration and its policies can have a real impact on you, the employer, when your employees choose to participate. What if an employee participates in a march instead of showing up for a shift? What if an employee protests for an issue that you disagree with? Can you discipline them or even fire them for protesting?
These questions are complicated and are very fact specific to each situation, but there are some basic guidelines and considerations we will share below to help frame your case-by-case decision making.
Section 7 of the National Labor Relations Act gives employees the right to engage in certain activities, when employees seek “to improve their lot as employees through channels outside the immediate employee-employer relationship”. [Eastex, Inc. v. NLRB 437 U.S. 556 (1978]. Section 8 of the NLRA prohibits employers from interfering with the rights set forth in Section 7. The National Labor Relations Board (“NLRB”), based on its reading of the Supreme Court case involving employees’ protect activities, has determined that engaging in certain political advocacy may be protected under Section 7 of the National Labor Relationship Act when there is a direct nexus between the issue being advocated and an employment concern.
Does this mean that the employer cannot discipline an employee for calling out sick or for a no-call/no-show in order to engage in a march, protest or political advocacy?
Not necessarily. This determination is very fact specific – what is the goal or purpose of the march, protest or general strike? Is the specific issue sufficiently employment-related and related to an issue over which the employer has control? If the answer to all of these is yes, then the activity may be protected. An employer will want to seek legal counsel in making this determination.
Further Reading: Political Headlines That Impact Employers
If the protest is not employment-related and not related to an issue over which the employer has control, then an employer can take action for no-call/no-show or can refuse to grant the day off. The employer must apply the same neutral work rules that they would normally apply for an unexcused absence and must consistently apply the rules to all employees. Please note, if the employee engages in NLRB-protected political activity while off duty and on his or her own time, then the employer cannot discipline or retaliate against the employee.
Remember that sometimes the morale impact within your company, as well as potential PR concerns, may be important considerations in making a decision on how to handle a march or protest. These are generally very fact specific issues and you will want to reach out to the HR consultants at Propel HR if you have any questions or concerns about how to handle a political advocacy situation impacting the workplace.
Neither Propel PEO, Inc. nor Propel HR, Inc. is a law firm. This blog is intended for informational purposes only. It does not constitute legal advice and is not guaranteed to be correct, complete, or up‐to‐date.