Unions and union front organizations are promoting a nationwide “Strike for Black Lives” at noon on Monday, July 20, 2020. These groups are encouraging employees to take at least eight minutes and forty-six seconds of their workday to: (1) “take a knee”; (2) remain silent; or (3) walk off the job. A website backed by the Service Employees International Union (SEIU) provides employees with step-by-step instructions on how to participate in the “8:46 Pledge” (a reference to the recent killing of George Floyd), including a sample “strike notice” to provide to their employers and buzz words to use (and avoid) to support claims that their activities are protected by Section 7 of the National Labor Relations Act (NLRA).
It is not clear whether or under what circumstances the National Labor Relations Board would conclude that employers may discipline employees who participate in the “Strike for Black Lives.” The Board may consider “taking a knee” or “walking off the job” to be a form of concerted “political advocacy.” However, in such cases, the subject matter of the advocacy must be “directly related” to a specifically identified employment concern of the participating employees to be potentially protected by Section 7. Further, even if employee actions fall within the “mutual aid or protection” clause of Section 7, the time, place, and manner may ultimately render their actions unprotected.
The line between protected concerted activity and unprotected political advocacy is often thin, difficult to draw, and may vary with the composition of the Board. It is especially difficult when employees send mixed or limited messages regarding their reasons for engaging in the activity. “Strike for Black Lives” cases that make their way to the Board will, no doubt, prove this point.
Thus, the specific circumstances must be carefully evaluated when considering whether to take adverse action against employees. However, in Memorandum GC 08-10 (2008)(addressing immigration reform protests), the Board’s General Counsel adopted the following general principles that non-union and union employers may find helpful:
- Non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern, that takes place during the employees’ own time and in non-work areas, is protected;
- On-duty political advocacy for or against a specific issue related to a specifically identified employment concern is subject to restrictions imposed by lawful and neutrally-applied work rules; and
- Leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern may also be subject to restrictions imposed by lawful and neutrally-applied work rules.
In short, depending on the facts, employers may have some leeway to continue to apply facially neutral limits on such activities such as limits on the use of “working time” or conduct in “work areas,” conduct that puts personal safety, customers, or property at risk or violates an anti-discrimination policy, or on employees speaking to the media on behalf of the employer.
Of course, union employees leaving or stopping work to engage such activities may also be subject to discipline if their actions violate a no-strike clause in their collective bargaining agreement. In addition to no-strike obligations, unionized healthcare employers are entitled to receive 10 days’ notice of any strike under the NLRA.
Frankly, there are larger practical issues for employers. Unions and union front organizations promoting the “Strike for Black Lives” believe some (perhaps most) employers will support or at least refrain from disciplining employees who take part in the “8:46 Pledge” because of ongoing social responsibility or “bridge building” initiatives, brand sensitivity, or to avoid creating significant employee and public relations issues. Other employers may choose varying degrees of disciplinary responses because of their particular industry, because of the discord such actions may cause between participating and non-participating employees, or their concern about setting an untenable precedent.
While there is no “one-size-fits-all” approach, and the short amount of time between now and Monday may make some steps impractical, there are steps employers may choose to take to avoid or mitigate business, legal, and public relations risks associated with the “Strike for Black Lives” or similar protests in the future.
- Assemble relevant stakeholders to review the pros and cons of different responses and choose a course of action.
- Develop and distribute guidance to employees on your expectations.
- Include information about existing social responsibility and diversity and inclusion initiatives the company is pursuing and why participation in those efforts is a better alternative.
- Promptly respond to employee concerns and suggestions.
- In union settings, understand what your contract does and does not permit, keep in mind any potential bargaining obligations, and notify your unions where appropriate.
- Develop and distribute guidelines, talking points, and FAQs for executives, managers, supervisors, and media relations to use when addressing employees in different scenarios. For example:
- Do not impose or threaten to impose discipline; HR and legal will work with you to ensure a lawful response after a complete investigation of the facts.
- Ensure that any disciplinary or other responses at least match prior responses to comparable behavior, such as leaving work without permission.
- Train managers and supervisors to handle whatever happens with the greatest level of respect and professionalism; include what they are legally permitted to say and prohibited from saying under the NLRA.
- Don’t forget to address the need and how to document (or in some cases record) the events including: what happened, where, what was said about the reasons for the employee’s actions, and any actual disruption caused.
- Don’t forget that different legal rules and considerations will apply if the activity is limited to wearing “Black Lives Matter” attire or other buttons, pins, ribbons, etc. bearing symbols or slogans.
Some employers may choose to proactively communicate with employees in advance of the “Strike for the Black Lives.” Whether or when to take any of these steps must account for your unique workplace culture, industry, and other relevant factors. Healthcare employers, for example, will carefully consider the level of anticipatory response warranted. It is unlikely that many employees with patient care responsibilities will abandon their patients to participate, particularly in the current pandemic environment. In such circumstances, over-responsiveness could inadvertently encourage employees who otherwise would not participate in the “Strike for Black Lives” to do so, especially if they believe the employer is prepared to otherwise cover their patient care responsibilities.
By its nature, this Alert cannot address all of the different scenarios employers may face on Monday, or thereafter, and their labor relations implications. Given the unprecedented times we are living in, we encourage you to speak to your Littler labor lawyer about the workplace and industry specific issues you believe may arise. We will carefully assess the specific legal and factual situation and help you determine appropriate next steps.