Groups supporting immigrant rights have dubbed May 1, 2007 “National Day to Support Immigrant Workers Rights” and are encouraging supporters across the country to schedule rallies or participate in the “Great American Boycott II” on that day.
As you recall, last year Phoenix and several other cities experienced large immigration reform rallies. Those supporting immigration reform took to the streets en masse. We have learned that groups supporting immigrant rights have dubbed May 1, 2007 “National Day to Support Immigrant Workers Rights” and are encouraging supporters across the country to schedule rallies or participate in the “Great American Boycott II” on that day. A Phoenix rally is scheduled for 8:00 am. Locals of the ILWU in San Francisco and Seattle have called for a work stoppage in support of the boycott. The National May 1st Movement for Worker and Immigrant Rights claims “mass demonstrations are scheduled for May 1 in cities across the country including: Los Angeles, Chicago, Boston, New York City, San Antonio, Houston, Seattle, Phoenix, San Francisco, Seattle, Detroit, Providence, R.I., Elizabeth, N.J., Hempstead, N.Y., and many other locations.”
From a legal perspective, employers must consider implications under various laws, including the National Labor Relations Act (NLRA)'s protection of protected concerted activity, Title VII's race and national origin nondiscrimination provisions, the IRCA's citizenship nondiscrimiation provisions, and, possibly, state and local laws. In addition, public employers must understand that an employee could have state and federal constitutional protections. All this said, your business doesn’t have to be held hostage by such events. You’ll just want to think through all of the issues before you act.
Generally, an employee who does not report to work and gives no reason, either before or after the absence, can be subjected to the employer's disciplinary policy.
The NLRA protects employees who "engage in ... concerted activities for the purpose of ... mutual aid or protection." The National Labor Relations Board (NLRB) (the agency charged with enforcing the NLRA) has issued some decisions that could support a finding that an employee who misses work to participate in one of these rallies for the purpose of supporting and aiding in securing protection for illegal/undocumented co-workers (or illegal/undocumented workers in general) engages in protected concerted activity. However, the NLRB's General Counsel has also issued advice memoranda indicating, in some circumstances, missing work to attend immigration related rallies may not be protected. Thus, employers who choose to be aggressive in disciplining employees for attending immigration rallies should exercise caution in doing so and should consult with experienced labor and employment counsel.
Other antidiscrimination laws may also impact how an employer deals with this situation. Employers must be careful to ensure that any disciplinary actions taken as a result of employees' participation in these marches are consistent with the employer's policy and prior practice. For example, not granting an Hispanic employee's request for the day off to attend a rally but granting a non-Hispanic employee's request for time off to attend a child's school play, or terminating an Hispanic employee on his first no-call/no-show for attending an immigration reform rally but only giving a written warning to a non-Hispanic employee for his first no-call/no-show could implicate Title VII's national origin and race discrimination provisions.
This issue of consistency also is important when it comes to public employers. The Constitution protects individuals’ right to speak their mind under the right circumstances. So, you are free to limit such speech or participation in a political event during work hours – as long as you would do that for any event. For example, if you would permit employees to go to a charitable parade, not permitting them to attend the rally could be seen as viewpoint/freedom of assoication discrimination in violation of the First Amendment.
In addition to the legal aspects of dealing with absences resulting from these marches, employers must also consider the public relations and operational challenges presented. Particularly in industries heavily dependent on foreign workers, employers may decide not to take a hard line on discipline of these individuals. As a practical matter, some employers may have such a high percentage of employees participating that disciplining or terminating all of them may dramatically impact the company or a facility's operations.
Employers' Bottom Line:
Knowing that this rally is just a few weeks away, and that a one-day "strike" may be in the works, we strongly encourage all employers to be proactive in your approach to handling this extremely sensitive situation. You should consider reaching out to or increasing communication with your employees in an effort to avoid creating an "us versus them" atmosphere. You’ll want to outline what is expected and try to figure out how you can accommodate everyone’s needs and desires. Once that’s done, you may want to prepare talking points or guidelines for department and/or Human Resources managers who may be required to handle these types of situations. These guidelines should attempt to balance the desires of the employees with the operational needs of the business and the practical impact of employees ignoring a company position they view as too strict. The approach you take will depend on your workplace demographics and the sensitivity of your business to work interruptions and public relations. Above all though, plan for this activity and do not simply rely on the policies you have in place without considering whether those policies adequately address the situation.
If you have any questions regarding this issue, please contact Troy Foster, a partner in our Phoenix office, at 602-627-3504, tfoster@fordharrison.com, or the Ford & Harrison attorney with whom you usually work.