Every day media outlets are reporting on people’s concerns about how the COVID-19 pandemic is being handled: citizens are complaining about the government; politicians are complaining about each other; and some workers are complaining about their employers. We have even seen a few employee-led work disruptions in which the purported focus was to protest the handling of a company’s COVID-19 response. Whether constructively sincere or mere venting, in the context of labor relations, it is imperative employers know and understand the legal parameters that govern their responses to such employee actions.
Many employers are asking whether traditional labor law concepts under the National Labor Relations Act (NLRA) relating to employee group action are still applicable given the unprecedented scope and impact of COVID-19. Unfortunately, it is necessary to give the common answer: “it depends.” While the NLRA has not really changed, the federal law’s application to the current circumstances seems counterintuitive to the national emergency.
Notwithstanding the public health crisis, the National Labor Relations Board (NLRB) still theoretically recognizes the right of employees to engage in protected concerted activity—that is, action taken with or on behalf of other employees concerning the terms and conditions of their employment. All non-supervisory employees (statutory supervisors are not covered by this law) have that right regardless of whether they are represented by a union. As a general proposition and under the right circumstances, that means both union and non-union employees have the potential right to protest their employer’s actions or perceived inactions related to COVID-19 and still have the protections of the NLRA.
For instance, the mere fact non-union employees are engaged in collective action relating to workplace safety concerns may be sufficient to confer protection, even if an employer believes it has taken the appropriate safety measures and/or complied with governmental and agency safety directives. While employees may make demands prior to taking job actions, employees are not technically required to do so under existing Board principles in order for concerted conduct regarding workplace safety issues to arguably be protected.
Unionized employees who walk off the job in protest of safety issues, even those subject to a no-strike agreement under specific conditions, may also be protected from discipline or discharge under a safe harbor provision of the NLRA. While not a simple analysis, where unionized employees have a “good faith belief” supported by “ascertainable” and “objective evidence” that an “abnormally dangerous” working condition exists, a refusal to work may be protected—even if there is a no-strike clause in the applicable collective bargaining agreement.
For some, one of the most surprisingly aspects of the NLRA’s application to the current situation is that these rules may apply even where a business or individual employee is deemed to be part of the “essential” or “life sustaining” infrastructure.
Employers must ask questions to understand the broad scope of how the NLRA relates to job actions, especially as they develop workplace contingency plans and responses. Some of these questions might include:
- May striking workers be replaced?
- Are all work stoppages protected?
- Are striking workers entitled to pay, benefits, and/or unemployment compensation?
- Are the rules the same for union and non-union workers?
- What happens if employers get it wrong?
- Do employers have any recourse?
For the answers to these questions and more, see our “COVID-19 FAQ: NLRA.”
Armed with the answers to these questions, employers can start educating their management teams and planning now so their responses to threats of (or actual) job actions are well thought out, in line with communication objectives, and legally compliant.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.