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This past week, workers across the country staged a strike on International Worker's Day.  Their purpose was to bring awareness to social and employment issues.  

While this strike may not have affected your or your business, it's important to be aware that these topics come up more and more in our everyday living.  Read more to know how to handle any employees who strike - or are planning to.

Original Post: Nationwide Strikes Are Scheduled For May 1: Are You Prepared?By Leslie Zieren, The McCalmon Group, Inc. - April 19, 2017

Service workers, particularly in the South, are planning to take part in a general strike on May Day, which coincides with International Workers' Day. More than 350,000 workers have pledged to strike, including food chain workers and unionized workers. The effort is described as the biggest general strike organizing effort in the U.S. in 70 years, according to the Food Chain Workers Alliance (FCWA).

The strike topics range from immigration to transgender rights to racial concerns to protecting the environment, but organizers are also targeting wage issues and work condition improvements. This is important for every workplace to take note of, even if your workplace is not a union workplace, because wage protests are protected.

The National Labor Relations Act of 1935 (NLRA) is a federal law that guarantees certain private sector employment rights. The NLRA guarantees non-union workers the right to engage in protected "concerted activity" without fear of retaliation by a non-union employer.

This means your workers have protections managers need to know and understand to avoid violating the law. Sections 7 and 13 of the NLRA give workers the right to strike. Workers who strike for an economic purpose (higher wages, shorter hours, better working conditions) are known as "economic strikers." They can retain their status as employees during a strike. The right to strike is protected activity, if it is "concerted," which means involving two or more workers. Strikes can involve large groups of workers or just two. As long as one worker protests wages or hours on behalf of all workers, and at least one other worker joins in that protest, the right to strike without employer retaliation is protected.

Managers must be careful not to retaliate against workers who strike. Retaliation could include, for example:

  •        Terminating, disciplining, or taking adverse actions against workers in connection with a strike;
  •        Questioning or interrogating workers about plans to strike. Note that workers are not required to give employers notice of an impending strike;
  •        Discouraging or threatening workers for striking;
  •        Promising benefits to discourage union support or concerted activities. In fact, a worker cannot legally waive his or her right to strike, so it is not a good idea to promise more wages to a worker in exchange for an agreement not to          strike.
  •        Blocking, bullying, or threatening nonviolent picketers, as long as your business entrance is not blocked during the strike;
  •        Punishing workers who wear nondisruptive protest clothing/buttons;
  •        Forbidding workers from discussion wages, benefits, other working conditions, or union formation, even if on your premises, as long as they are off the clock;
  •        Punishing social media posts that contain complaints about work, as long as the posting invites discussion about working conditions, and the protester has coworkers who are "friends" who can engage in the online discussion.

"Supervisors", however, have no strike protection. Employers can insist that you, as a manager or supervisor, perform your job duties, and any other duties that need to be completed, during a strike. The definition of "supervisor" under the NLRA is "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

Job duties and authority are determinative; job titles are not. If the authority of a team leader, lead employee, shift leader, or similarly-designated workers does not meet the NLRA definition of "supervisor," then that worker will have strike protection, despite his or her job title.

Your workers have to engage in strike-appropriate conduct. Workers are not protected if they:

  •        "Partially strike"; that is, perform certain duties and not others;
  •        Engage in a "work slowdown"; that is, work, but not at normal speed;
  •        "Sit down strike"; that is, block operations by refusing to leave the premises and go outside on public property;
  •        "Intermittent strike"; that is, refuse to work for an hour every Wednesday, for example;
  •        Block entrances or exits to your business; block guests or deliveries; disparage the employer's business activities to customers; make direct threats of violence; or otherwise break the law.

Keep careful documentation of who strikes. Here is why:

  •        Employers do not have to pay striking workers for time spent not working and do not have to adjust any striker's schedule to make up hours (wages) lost during the strike.
  •        Employers do not have to meet any of the strikers' demands or even discuss them. It is best to refrain from speaking to groups of strikers. You may, however, speak to workers on an individual basis.
  •        Employers can call in others in to work during the strike (e.g., workers who are not striking, managers, supervisors) or hire new workers to temporarily replace the striking workers.
  •        Employers may, under certain limited and complicated circumstances, permanently replace a striking worker; however, consult with your human resources department first.

How can you best manage strike days? Be prepared.

  •        Have your temporary, fill-in staff ready to go and trained.
  •        Be professional with the strikers. Remember, they will be back to work.
  •        If the strike starts mid-shift, make sure striking workers clock out.
  •        If strikers violate the rules of striking (e.g., blocking entrances, refusing to leave the premises) you may want to call the police to manage it.

And as always, if you have any questions about your human resources or employee benefits strategy, let Davis Dyer Max help.  Schedule a complimentary review of your programs to make sure you are protected and compliant.

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