Occupy [Insert City] Is Coming – Are You Ready If Your Employees Get Involved?

By John H. Douglas

You might have to live under a rock not to have heard about the “Occupy Wall Street” protests by now. As such protest activity spreads to additional cities and towns around the country, employers should prepare for issues that may arise if their employees opt to join in or support such activity in person or via social media.

Many non-union employers have been surprised to learn recently that even though their employees are not unionized, the National Labor Relations Board may still take a keen interest if an employee who has joined with other employees to protest or complain about inadequate wages or unfair working conditions is disciplined.

Is this a “protected concerted activity?”

Under the National Labor Relations Act (NLRB), employers generally cannot legally exact discipline on such employees because they are engaging in what is called “protected concerted activity.” Although such activity can lose its “protection” at times when employees engage in egregious misconduct – many non-union employers would be surprised to learn that the National Labor Relations Board does not consider a group of employees’ going on “strike” for a day or two to constitute such misconduct.

If “strike” activity is repeated “intermittently” – or employees engage in a “partial” strike by refusing to do some, but not all, their work duties – however, the result can be different. In such circumstances employers generally have a free hand to exact discipline up to and including termination.

“Occupy Oakland” called a “General Strike” in Oakland, California yesterday (Nov. 2, 2011). Whether this call will succeed and spread to other cities is unclear (Editor’s note: According to the San Francisco Chronicle, “A long day of mostly peaceful protest on Wednesday in Oakland descended into chaos after midnight”).

It would not be the first time a “general strike” has occurred in Oakland, however.

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In October, 1946, 400 clerks from downtown Oakland’s Hastings and Kahn’s department stores went out on strike while trying to unionize. In early December, the strike escalated when Oakland police cleared away pickets and tried to protect trucks crossing the picket line. On December 3, 1946, approximately 100,000 AFL affiliated workers employed in Oakland responded by declaring a “work holiday” and walking off their jobs.

Many state laws protect off-duty activity

Not only can the National Labor Relations Act come into play and protect individuals participating in “protected concerted activity” – many states, including California, have laws that protect employees engaged in lawful off-duty activity.

In addition, though somewhat anomalous, California has generally dispensed with the “state action” requirement for violations of the California constitutional rights. It is thus generally illegal for employers in California to retaliate against their employees for engaging in political protest. (This may also constitute a separate statutory violation under certain provisions of the California Labor Code).

The bottom line: an employer that reflexively terminates or disciplines employees for supporting or participating in the activities of the “OWS” movement may eventually find itself on the short end of a legal stick. Employers are well advised to weigh their legal options carefully when and if they are contemplating their response to employees engaged in this kind of activity.

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