Responding to Employee Activism
By Lehr Middlebrooks Vreeland & Thompson, P.C.
September 27, 2018
The month of September saw at least two major work walkouts in support of the #MeToo and #BelieveSurvivors movements. The first was the organized McDonald's protest in support of ten McDonald's workers who filed EEOC charges alleging they were subjected to near-constant sexual harassment and then retaliated against when they reported it. The second effort called on people to wear black and to walk out of their workplaces at 1:00pm Eastern on September 24 in support of women who have survived sexual assault. The latter event in particular is strongly associated with the allegations of improper sexual conduct by Supreme Court nominee Judge Brett Kavanaugh against Christine Blasey Ford and Deborah Ramirez. These two recent walk-out events are not the first and are unlikely to be the last in politically-motivated (or at least not exclusively work-related) workplace protests.
Employers should exercise caution before responding immediately with severe sanctions to employee activism. In some cases, these protests may qualify as protected concerted activity under Section 7 of the National Labor Relations Act. Section 7 of the NLRA privileges collective employee activity for the purpose of raising work-related concerns. The McDonald's workers, for instance, are fairly clearly acting in concert in an effort to bring attention to and reform the alleged misconduct that they contend affects their working conditions. Just because workplace activism addresses a more global concern (such as 2017's Day Without Immigrants or marches in favor of minimum wage increases, for example) does not mean it is automatically unprotected by the NLRA. The Supreme Court in 1978 ruled that employees did not lose their protection under the NLRA "when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship." Eastex, Inc. v. NLRB. Instead, all of the circumstances must be analyzed, including whether the protest concerned a working condition, the manner of the employee's protest, whether the protest occurred during the employee's working time or not, and the employer's ability to address the condition the employees are protesting before such a determination may be made. Employers should also consider their own risk tolerance, their ability to mitigate disruption, and other practical considerations before taking action.
To avoid complaints of favoritism or discrimination, employers should treat employee requests to engage and actual engagement in political and social protests in accordance with neutrally-written and consistently-enforced policies. For example, if an employer normally requires two weeks' notice before permitting an employee to use PTO but will bend the rule if it can arrange staffing coverage so an employee can attend a child's field trip, the company should exhibit the same circumstance-dependent flexibility for an employee who desires time off to march. Further, if an employee does engage in detrimental conduct in the course of such activism, the employer should ensure that the employee is disciplined consistently with other employees who engaged in such detrimental conduct absent political or social motivation.
Relatedly, in some limited circumstances, employee activism might be protected conduct under employment laws prohibiting retaliation (Title VII, Section 1981, ADEA, ADA, GINA, etc.). This could be the case if an employee acts in opposition to alleged discrimination or harassment at his or her own workplace, provided the employee's manner of protest was not particularly disruptive. A court would likely be most sympathetic to allowing an employee to proceed with a retaliation claim in circumstances where the purpose of the protest was to raise a legitimate complaint to a higher-level executive after a complaining employee's prior complaints to personnel identified in the company's handbook were ignored.
Some jurisdictions have laws prohibiting discrimination based on political viewpoints or off-duty political activity. Public employers and employers that contract with public entities may also have constitutional, statutory, or contractual obligations to refrain from taking employment actions based on an employee's political activity or activism.
The bottom line is that responding to employee political or social activism can be more complex than it initially appears, and there is certainly no one-size-fits-all formula for doing it. We welcome the opportunity to partner with our clients in anticipating and responding to such situations.