In our April 7 e-alert, we reminded clients that their employees’ participation in the demonstrations regarding federal immigration reform legislation could constitute “protected concerted activity” under the National Labor Relations Act (NLRA).  Because the law in this area is not well settled, we have recommended that employers be mindful of the possibility that if they take adverse action against employees for their absence to participate in such demonstrations, they may have to defend against an unfair labor practice charge under the NLRA, not to mention the risk of unfavorable publicity. 
 
Recently, in anticipation of the planned May 1 demonstrations and boycotts across the country, we received many inquiries from clients asking if they could require advance notification from employees who were planning to miss work to participate in the national immigration protests.  We believe the answer is “yes,” if the employer can show that employees’ failure to give notice will cause more than slight damage to the business.
 
The general rule is that an employer cannot attach conditions to protected concerted activity, including advance notice.  In re Americorp and Local 32B-32J, SEIU (2002).  The NLRA does require labor organizations but not employees to give a 10-day notice of a strike at a health care operation.  However, no notice is required by the NLRA — and none can be required by the employer — of a strike at any other type of business when the object of the strike is to put pressure on the employer to accede to employees’ demands. 
 
On the other hand, when the purpose of the concerted activity is not to compel the employer to agree to employee demands, but rather a more general purpose with at best indirect involvement of the employer, the National Labor Relations Board and courts have favored a balancing test of the Section 7 rights with the employer’s legitimate desire to avoid damage to its business.  In Business Service by Manpower, a 1986 case decided by the Second Circuit Court of Appeals, the court found that where the Section 7 right is “weak,” an employer could require notice if failing to have notice would cause unreasonable damage to the business.
 
Many of our clients have indicated they are informing their employees that they are permitted to participate in the immigration protests, but are requesting advance notice to allow the employer to make arrangements to cover for the absent employees.  Clients taking this approach may want to include in such notices a discussion of the damages that could or would be caused by failure of the employees to give advance notice, especially where such damage might be severe or cause partial or total shutdown of the operation. Further, disciplining employees pursuant to absenteeism policies is not without risk where the absence is occasioned by the protected activity.  Thus, employers should review each situation on a case-by-case basis and consult with legal counsel before taking any disciplinary action against an employee who is either absent or fails to give proper notice of an absence in these situations.
 
Should you have any questions concerning this issue, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 800-603-1252 or via e-mail at clientservices@ogletreedeakins.com.  

Note: This article was published in the April 27, 2006 issue of the National eAuthority.


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