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National “Strike for Black Lives” Planned for Monday, July 20

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National “Strike for Black Lives” Planned for Monday, July 20

Will your employees be walking off the job on Monday?

A few unions (primarily the SEIU) and a coalition of social justice advocacy groups (primarily the Movement for Black Lives) are encouraging workers to engage in a nationwide job walk-off for eight minutes and 46 seconds this coming Monday, July 20th. It appears that longer, more formal protests will also be held that day. The action is referred to as a “Strike for Black Lives,” but coalition members are also advocating for a $15 minimum wage.

The organizers have not made clear announcements as to the precise timing of the called-for job action or if and where major protests will be held. They are targeting 25 cities, though, and are focusing on industries with low-wage workers such as ride-share companies, nursing homes, fast food and retail employers. Some employers have been told of an eight-minute 46-second walk-off plan, but others are reporting that the unions are pushing for walkouts of an hour or more. Some walkouts appear to be set for noon, others at 2 p.m., but this may vary from site to site or city to city.

The Walkout’s Legal Protection

Importantly, this action is targeted at both unionized and non-union workforces. Ironically, employees covered by union contracts with strong no-strike clauses cannot strike without violating those clauses. However, other workers may partake in the strike. If they do, employers should be aware that they are limited in how they can legally respond.

According to an August 30, 2017, NLRB General Counsel Advice Memorandum, job actions that relate to how workers are treated and how much they are to be paid are “protected concerted activities” under the National Labor Relations Act. It does not matter that the employer is not the specific target of the job action; that is, at least in that General Counsel’s view, it can regard a more general social policy and still be protected. 

By being protected, employees (other than managers and supervisors in the private sector) may not be disciplined for partaking the job action, threatened with discipline, and asked about their plans to participate in the action. Doing any of these will put the employer at risk of defending an unfair labor practice charge before the National Labor Relations Board and having to reinstate employees with back pay, post notices of having violated the Act, and perhaps face other remedies.

How to Respond and Plan

For the foregoing reasons, employers should avoid intimidating employees to not participate and also educate them as to the employer’s commitment to treating them well, including by emphasizing the employer’s EEO policies and practices. It will also be key for employers vulnerable to such a walkout to prepare for how it may impact operations. Not all employees will likely participate, but many may. Can operations continue? Will operations have to shut down or can they be modified to function with skeleton crews? Is there a need for security to prevent theft and vandalism during the workout period, or otherwise assure safe operations? Are plans in place for responding to media inquiries, if made?

Employees, of course, need not be paid for the time missed for their participation in the strike, and they still have to follow normal protocols for clocking out and back in.

Navigating through these issues can be complex, particularly for operations that can’t accommodate most employees leaving for even a short period. Different circumstances call for different plans. Experienced labor counsel should be consulted before Monday since calling them only after a legal charge is filed may be too late to avoid liability that could have otherwise been easily avoided.