Executive Summary: In an attempt to draw attention to their ongoing efforts to raise the minimum wage to $15 per hour, union organizers have announced another walkout/strike for May 15th. The latest push, an international effort headed by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF), was announced last week at a press conference in New York City. Walkouts are currently slated for Oakland, Raleigh, Philadelphia, Sacramento, Miami and Orlando, with workers in other cities potentially joining in. Globally, there will be strikes and protests in cities like Rabat; Morocco; Hong Kong; Seoul; Bangkok; Auckland; Brussels; Dublin; Rome; and Buenos Aires, among many others. With thousands of fast-food workers in the U.S. expected to take part in the one-day strike, employers in the fast food industry would be wise to make sure they are prepared to respond appropriately to these efforts.
Employees' Right to Strike
The National Labor Relations Act (NLRA) protects an employee's right to organize and participate in union activity, such as strikes, and to engage in other types of concerted activity for "other mutual aid or protection." Importantly, these rights extend to all employees, regardless of whether they are represented by a union or whether collective bargaining is involved. The law prohibits an employer from interfering with employees' rights, which means an employer cannot terminate or take any other adverse action against an employee for engaging in activity protected by the NLRA, such as a strike. Employers also cannot threaten to take action against employees who strike, nor can the employer question employees about their plans to strike.
These rights do not extend, however, to supervisors or managers, who are considered agents of the employer. The NLRA lists a number of supervisory functions in its definition of supervisor, including, among others, the authority to hire, fire, promote, discipline, assign or reward other employees or effectively recommend such actions. An employee's status as a supervisor or manager is not determined by title but by his or her actual authority.
What's an Employer to Do?
While it may seem that employees have the upper hand in these situations, restaurant employers should know they have rights as well. Below are some general guidelines regarding employers' rights if a strike occurs:
- Just because the employees strike does not mean the employer must give in to their demands. If a union has not been certified as your employees' representative, you are not obligated to bargain with the strikers.
- The employer is not obligated to pay striking employees for their time spent on strike. Employers are only required to pay employees for time spent working. Striking is not working, so employees are not entitled to pay for that time.
- The employer may hire replacement employees or use existing members of the workforce who are not on strike to perform the jobs vacated by the strikers. In most situations, these replacements will be temporary. Although an employer may permanently replace striking employees in certain situations, employers should discuss this option with counsel prior to implementation.
- Unless the employer has permanently replaced the striking employee, it must allow the employee to return to work after the strike. The employer is under no obligation, however, to allow the employee to make up for the time lost due to the strike.
Can a Strike Become Unlawful?
Even if a strike has a lawful goal, when unlawful methods are used to achieve that goal, the strike may be declared unprotected. For example, employees may not engage in repeat, intermittent, quickie-type strikes. Nor can employees refuse to do some, but not all, of their work duties and remain protected. In addition, the law prohibits employees from picketing in a manner that prevents others – such as delivery trucks or patrons – from entering or exiting the building or adjacent access points such as parking lots. Strikers also cannot physically assault or threaten violence against the employer or guests. Engaging in such conduct may cause the employee to lose protection and make him or her subject to discipline up to and including termination.
After the Strike
After the strike, employees who have not been permanently replaced have the right to reinstatement upon making an unconditional offer to return to work. On the flip side, an employee who insists upon an employer concession before returning to work has not made an unconditional offer and is not entitled to reinstatement.
Employers should resume normal operation of their business including regular enforcement of lawful employment policies, including disciplinary procedures. However, employers should be careful not to target for discipline employees who participated in a strike or any other concerted activity. Doing so could constitute an unfair labor practice. Employers seeking to discipline employees who have previously engaged in concerted activity should discuss the situation with experienced labor counsel before taking the adverse action.
Preparing for the Next Strike
In the likely event that another strike is organized, whether globally, nationwide, or locally, employers should take a proactive but measured approach in preparing for the strike.
- Consider explaining to employees what they legally could lose with respect to their wages as well as the company's right and intention to operate during a strike. This includes informing employees that striking does not obligate the employer to give them anything.
- Do not promise employees any benefits or threaten them in an effort to dissuade them from participating in the strike or to encourage them to cross the picket line.
- Determine whether you intend to operate your restaurant on the day of the strike. Consider how many employees you expect to participate in the strike and the number of replacement employees you will need, if any, to maintain normal operations during the strike.
- Call a meeting of managerial and supervisory personnel. Advise these individuals of the possibility of a strike and what he or she should do if a strike occurs. Be sure to advise all supervisory personnel that the restaurant expects them to report to work regularly during the strike.
- Inform delivery people and product reps of the possibility of the strike and inform them the restaurant expects deliveries to be made regardless of the picket line.
- Have supervisory personnel and any replacement employees ready to begin work before the strike starts.
- While employees are on strike, do not photograph or videotape the strikers unless it is necessary to document an unlawful action.
Organizing efforts like these are likely to continue for the foreseeable future. While most may come and go without much effect, the potential for a union to organize your workforce remains ever present. Employers who suspect their employees are interested in forming a union should contact experienced labor counsel to develop an appropriate and lawful response strategy.
If you have any questions regarding this article or other labor or employment related issues impacting the restaurant industry, please contact the author, Joshua Sudbury, firstname.lastname@example.org, any member of FordHarrison's Restaurant Industry practice group, or the FordHarrison attorney with whom you usually work.