The #MeToo Movement has led many companies to examine their corporate culture. It has also led employee walkouts. One big walkout which garnered news coverage occurred this past November, when thousands of Google employees staged a walkout in several worldwide locations, including the United States. The employees protested what they alleged to be a corporate culture of sexual harassment and cover-ups. While these culture issues deserve heightened attention, employers should also be concerned with the implications of employee walkouts. Specifically, what are an employer’s rights if its employees walk out in protest? What are the employees’ rights?
The right to protest and “peaceably to assemble” is protected by the First Amendment to the U.S. Constitution. However, that right is not without restriction: the First Amendment does not necessarily protect employees protesting on private property, nor does it protect their jobs. The National Labor Relations Act of 1935 (the “NLRA”) provides employees the right to engage in protests and other organizing activities related to workplace conditions. Under the NLRA, with some exceptions based on the types of protests and the conditions being protested, employers cannot interfere with or restrain employees’ rights to engage in these types of organizing and protests.
The NLRA prohibits retaliation against employees when they are protesting under these specific conditions. Even though Texas is not a heavily-unionized state, federal courts have ruled non-union employees can still participate in these activities and employers may not interfere or retaliate. However, it is not necessarily considered retaliation to discipline employees as a result of tardies or unapproved absences related to protests, and employers are not required to pay employees for walkouts when they are not using paid time off. Further, striking for particular professions may be illegal under state law. For example, public school employees who strike in Texas may have their teaching certificates and Teacher Retirement System benefits permanently revoked.
Navigating walkouts is a complicated legal and public relations issue that should be addressed with care. If you are ever faced with this or another complex employee issue, please give Rosenblatt Law Firm a call for advice.