Employers in recent years have been faced with a large increase in employee walkouts, particularly associated with what has been dubbed “Walkout Wednesdays.” These have become a favorite strategy and an enormous source of investment among labor unions attempting to acquire the backing and participation of non-union employees with walkouts. Due to the harm these walkouts can cause to business operations and workflow, many employers have been left questioning if they have any rights in these situations.
Under many conditions, the National Labor Relations Act applies many protections for employees engaging in coordinated protests related to their work conditions in addition to those of employees of other employers. This has been ably demonstrated in cases such as fast-food employees performing walkouts in order to demand their employer coordinate plans to solve general sexual harassment in the workplace.
In a case such as this, the National Labor Relations Board would be very likely to defend such an action because the company could be very likely to perform such changes that the employees demand. The employer, in this case, could choose to coordinate with the employees and attempt to prevent and address existing sexual harassment in its own locations.
However, in many cases, an employee can exceed the limits of these protections. If, for instance, employees choose to coordinate a walkout to protest political concerns or other causes that do not have a direct relation to their employer and over which the employer has no control, then they may not be protected. An example of this could be protesting general disparities such as health disparities between whites and African-Americans.
In such a case, likely the employer has no direct control or ability to create a solution for such a concern. In this case, a single employer likely cannot be said to have control, and employees who engage in a walkout protesting such a concern will be doing so outside the protections of the National Labor Relations Act. This means that an employer likely could safely take disciplinary action against the employees up to and including discharge for taking part in the walkout.
Even employees that do possess representation from a union may be limited in the protection they receive for such work stoppages. In most cases, protective bargaining agreements forbid employees from performing work stoppages for the duration of such an agreement. If the agreement has ended or does not contain such a provision, then it is quite possible that union employees may have only the same protections as non-unionized workers.
However, in either case, employers should consider discussing potential work stoppages and other job-related actions with professional labor counsel to determine their exact rights in such situations.