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My Employees Want to participate in a National Strike, What are My Options?

A new tide of political involvement has swept the nation after the election of President Donald Trump.  Groups of people are marching, participating in Town hall rallies, and organizing at the grass roots level at an unprecedented rate.  Recently, the group that organized the Women’s March on Washington has announced that they are organizing a Woman’s strike which, as the organizers are claiming will entail: “A day of striking, marching, blocking roads, bridges, and squares, abstaining from domestic, care and sex work, boycotting, calling out misogynistic politicians and companies, striking in educational institutions.”

In labor parlance a strike has a very particular meaning and effect and, depending on if the strike is lawful or unlawful, the ramifications of engaging in a strike can be dire.  Typically intermittent strikes, which are short strikes over a series of time used to achieve a common goal, are unlawful.

However, in a recent decision of the National Labor Relations Board, EYM King of Missouri, LLC d/b/a Burger King, 365 NLRB No. 16 (January 24, 2017), the decision of an administrative law judge holding that a nationwide one-day strike at fast food restaurants was lawful.  In the decision, the ALJ noted that the union “has been responsible for coordinating nationwide strikes in the campaign to set the minimum wage at $15 an hour” and had coordinated such strikes several times throughout the country.  However this did not stop the ALJ from finding that the one-day strike was not an intermittent strike and affirmatively proclaimed that “Clearly, a single one-day strike does not constitute intermittent strikes.”  In order to find that the strike was intermittent and, therefore, unlawful, several factors must be analyzed on a case-by-case basis including: “whether the strikes were part of a common plan, whether there was Union involvement, whether the strikes were intended to harass the employer into a state of chaos, whether the strikes were for distinct acts of the employer, and whether the alleged discriminates intended to ‘reap the benefits of strike action without assuming the vulnerabilities of a forthright and continuous strike.’” Based on these factors, the ALJ opined that “the Board has often declined to find that even two work stoppages amount to intermittent strikes without a showing that at least the employees sought to overtake the work site, attempted to work in their own terms, engaged in violence or prevented other employees from working.”  Thus, whether or not the Woman’s strike would be an unlawful intermittent strike may turn on the specific facts of each case.

Even if employees engage in a lawful strike, does not necessarily entitle them to be paid for such activity.  Part of the tradeoff of engaging in a strike is that the employer loses the labor and the employee loses their income.  Of course an employer may grant an employee time off pursuant to a vacation or personal day policy but, typically these days are at the employer’s discretion and are premised on the fact that the employer will have enough staff to carry on their operations.  Thus, depending on operational needs of the employer, such requests do not have to be granted.  Moreover, an employee who calls out sick and is later found to not have been sick may be disciplined for abusing sick leave.  Further, many contracts may contain No-Strike clauses which prohibits employees from striking or refusing to work and offers the employee no protection from discipline or discharge when they participate in a strike.

Because of the nuances and serious ramifications inherent in any strike situation, it is important to obtain legal advice before any strike situation.  Our team of attorneys has vast experience in dealing with strikes and other work stoppages and can help prepare employers and their managers for such situations.