Do Employees Who Join National Strikes Have Legal Protection Against Getting Fired?

A Day Without Immigrants - Long line of protestersThe past few months have seen numerous high-profile protests around the country, both in opposition to and support of the new administration in the White House. At least two major protests have called for nationwide strikes or walkouts. In February 2017, A Day Without Immigrants called attention to the significant role of immigrants in the nation’s workforce. This month, A Day Without a Woman did the same with regard to women in the workplace. Similar protests have occurred in this country and in countries around the world for many reasons across the political spectrum. It is not clear how many people participated in the recent events, but they appeared to have a noticeable impact. They also resulted in some participants losing their jobs specifically because of their participation, which raises the question of whether, and to what extent, state and federal employment laws protect this sort of activity. A quick review of a few statutes shows that no simple answer exists. For any individual, the answer may depend on their particular employer’s policies.

Antidiscrimination laws, like Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD), protect employees from adverse actions by their employers based on specified categories, such as race, sex, and national origin. The NJLAD provides much broader protections than Title VII, but neither specifically addresses political views or activities. An employer who terminates or otherwise penalizes an employee for participating in a strike like the ones mentioned above might not violate state or federal antidiscrimination laws. A claim could hypothetically be possible if the employer’s actions indicate bias based on a protected category. The two recent strikes deal specifically with the protected categories of national origin and sex. This sort of claim would probably be a long-shot without solid evidence of an employer’s bias, but it is a possibility.

Laws protecting employees’ right to engage in labor activities are likely to be a better option, but the amount of protection they offer is also not clear. The National Labor Relations Act (NLRA) states that workers have the right to engage in “concerted activities” aimed at collective bargaining or “mutual aid or protection.” 29 U.S.C. § 157. Employers may not unreasonably interfere with employees who are exercising these rights, nor may they discriminate against employees who do so. It would be hard to make the case that events like A Day Without Immigrants have collective bargaining as their ultimate goal, but they do plausibly serve the purpose of “mutual aid or protection” for workers.

The most important factor for employees participating in these events is probably their employers’ policies regarding engagement in political activities and missing work. In some of the cases in which people lost their jobs, the employers defended their actions by citing policies on unannounced or unexcused absences. An employee’s compliance, or lack thereof, with their employer’s policies could be the deciding factor as to whether the employer acted legally. If someone violates an unannounced absence policy, for example, the employer could fire them. If they follow their employer’s policies to the letter, however, and are fired anyway, or if an employer does not enforce its policies evenly, then there might be legal recourse.

To speak with an employment attorney about a matter in New Jersey or New York, please contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.

More Blog Posts:

New York City Mayor Issues Executive Order Regarding Union Organizing, The New Jersey Employment Law Firm Blog, September 22, 2016

U.S. Supreme Court Rules for Demoted Employee in First Amendment Claim, The New Jersey Employment Law Firm Blog, July 11, 2016

Do Employment Laws Protect Workers from Getting Fired and Other Adverse Actions for Public Statements on Social Media? The New Jersey Employment Law Firm Blog, January 23, 2015

Photo credit: Kyle Moore (Own work) [Public domain], via Wikimedia Commons.

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