Attorneys

• Lisa L. Garrett
• John E. Lyncheski

Related Practices

• Labor and Employment

On April 10, an estimated 80,000 rallied on the streets of Ft. Myers, protesting proposed immigration reform.  On May 1, thousands throughout Florida rallied again as part of a  nationwide boycott known as the Day Without Immigrants.  Further demonstrations are likely, including on Cinco de Mayo. Many Florida employers have felt the brunt of employees missing work to participate. 

Apart from the practical concerns this absenteeism has created, employers face a panoply of legal issues, including whether you can legally discipline or discharge these employees for failing to report to work.  Under the National Labor Relations Act, which applies to virtually all employers, employees have the right to engage in “protected concerted activity” undertaken for “mutual aid or protection,” and employers cannot discipline them for such activities.  This right applies to all employees, not just those who are represented by a union.  The U.S. Supreme Court has held that the protected activities include political activities undertaken to improve working conditions.  However, at some point the activities bear a less immediate relationship to the employees’ interests as employees and become too attenuated to be protected under the NLRA. 

Unfortunately, the law is not entirely clear as to whether missing work to attend the current rallies crosses the line.  The National Labor Relations Board (NLRB), in one case, held that writing a letter to Congress protesting immigration reform was protected concerted activity.  In that case, a group of engineers wrote the letter because they feared an influx of  engineers would threaten their job security.  Despite their employer’s inability to control the outcome of the immigration reform debate, their activities fell under the mutual aid and protection clause because of the potential impact on their job security. 

However, the engineers’ appeal to the legislature in that case did not interfere with their employer’s business operations.  Mass absenteeism, on the other hand, has the potential to significantly impact business operations.  Indeed, some employers were forced to close their businesses on the days of these rallies, and many more had to operate understaffed.  Yet employees are not just pondering the legality of discipline imposed for their absences – they are already filing charges with the NLRB. Unions and other advocates are assisting disciplined employees with these charges. 

For its part, the NLRB’s Office of General Counsel, in anticipation of the swarm of unfair labor practice charges, instructed all Regional Offices to investigate each case fully and to send the cases to the Division of Advice in Washington “for further case handling instructions”.  While the General Counsel did not indicate whether the NLRB will actually hold that attending these public rallies during work time is protected concerted activity under the Act, it does mean that the NLRB will be scrutinizing these cases very carefully.

Given all of the concerns and uncertainties, employers must exercise caution before disciplining an employee for an absence to participate in a rally. For more information, please contact Cohen & Grigsby’s Labor and Employment Group at 239.430.1800.