CHICAGO — In the wake of the Day Without An Immigrant and Day Without Women strikes, and with other political protests yet planned amid the nation's currently charged political climate, employers may be wondering what their legal obligations are if employees miss work to protest.
While the recent national protests may have been a "one-off" events, Linda R. Carlozzi, a principal at Jackson Lewis P.C., told the Cook County Record that employers have options when it comes to addressing employees who seek to miss work to participate in political protests.
Carlozzi said political speech or political action are generally not activities “protected" from employer discipline under the National Labor Relations Act (NLRA).
“The National Labor Relations Board issued a memorandum addressing a wave of strikes related to immigration policy in 2006," Carlozzi said. "The NLRB’s General Counsel, Ronald Meisburg, distinguished between political disputes and labor disputes. Ultimately, the general counsel found that political action isn’t protected. If the conduct is not protected, discipline will not be found to violate the National Labor Relations Act.”
The correct response, she said, may be as simple as reviewing attendance policies, past practices or writing a memo to employees.
“The work rules and policies to which protesting employees may be subjected must be non-discriminatory and neutrally applied," Carlozzi said. "It is not enough for the rule or policy to be neutral and non-discriminatory on its face. Its enforcement in practice must be consistent. This applies equally to requests for time off in advance. If you make an effort to accommodate employee requests for time off for various personal reasons, you must do the same if an employee requests time off in advance for this type of event.”
Carlozzi cautioned employers to consider whether there are any other federal, state or local laws that might apply in these types of situations.
She also urged employers to consider the big picture before deciding to discipline an employee who chooses to take time off to protest.
“It is worth noting that sometimes there are circumstances where discipline is legally acceptable, but practically, it may be less advisable," Carlozzi said. "The employees who choose to participate in these types of protests may view the issues in terms that are deeply personal. Each employer will have to decide how to respond under these circumstances.”