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Apr 2006
26
April 26, 2006

Proposed Immigration Protests Raise Employment Law Issues

As Congress continues to wrestle with a national immigration policy, organizers are planning a May 1, 2006, nationwide boycott. Called "A Day Without An Immigrant," the May 1 boycott follows on the heels of a similar event on April 10, 2006, which reportedly involved approximately 1 million people. Organizers hope that the May 1 event will be larger in scope, and have called for a general strike by workers, boycotts by consumers, marches and protests. Employees who choose to work have been encouraged to wear white armbands to show their solidarity with other protestors.

Many employers are concerned that the May 1 event could have a significant impact on their business if large numbers of employees refuse to report to work or walk off the job. How you, as an employer, respond to this event carries both legal and practical consequences.

First, an employee's refusal to work or walking off the job could constitute "protected concerted activity" under the National Labor Relations Act. The NLRA gives employees the right to band together to address terms and conditions of employment. The National Labor Relations Board, with the support of at least one federal appeals court, has ruled that employees who wrote letters to their Congressmen expressing concern over national immigration policy were engaged in protected activity under the NLRA and that the employer violated the law when it disciplined the employees. Kaiser Engineers, 213 NLRB 752 (1974), enf’d, 92 LRRM (BNA) 3153 (9th Cir. 1976). There are already news reports that employees who were discharged as a result of their participation in the April 10 event have filed unfair labor practice charges with the Labor Board. These claims have yet to be resolved, but regardless of how they turn out, they almost certainly will take employer time and resources to address.

Similarly, employees who choose to work but wear armbands may also be engaged in protected activity under the NLRA. The Labor Board has ruled that employees have a right under the NLRA to wear pins or other insignia to show support for coworkers or to signify their position on workplace issues unless there are special circumstances present. In the eyes of the Labor Board, these special circumstances can be fairly hard to establish, and they typically involve such things as an unreasonable interference with customer service, patient care, the employer's public image which is tied to employee appearance, threats to safety, or damage to equipment.

Aside from the legal issues, how an employer reacts to employees who support the May 1 boycott may generate significant negative publicity and create more employee dissension. As recently reported in the Detroit Free Press, an employer in the Detroit area agreed to reinstate twenty-one meatpacking employees who were fired after missing work in late March as part of an immigration-related protest. When sixteen of the employees returned, they presented their employer with a list of demands, including lost wages, a bilingual human resources representative, wage scale reviews, and an excused absence on May 1. As you probably guessed, these additional demands also constitute protected activity under the NLRA.

So what should you do in preparation for or as a response to employee action on May 1? First, you should prepare for multiple absences. This may entail building up inventory, training supervisors to fill in for absent employees, calling in employees from off-shifts, or, if possible, using outside contractors or temporary workers. Second, you should emphasize your organization's commitment to equal employment opportunity and you may want to somehow demonstrate your support for employees who want to cooperatively take part in the May 1 event. This could involve flexible scheduling, excused time off, or support for immigrant-rights groups. Finally, understand the legal issues that may be associated with employees who do miss work or wear armbands or other insignia, and consult with legal counsel before taking any type of adverse employment action. Any member of Warner Norcross & Judd's Labor and Employment Group can assist you with these issues.

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