Question:

I recently heard many of my employees talking about the National Day to Support Immigrant Workers Rights, which I learned is on May 1, 2007. During last years’ demonstrations in support of immigrant rights, we had several workers who did not report for work. What should we do if we have workers who do not show up for work again on May 1, 2007?

Answer:

You are correct that May 1, 2007 has been named the “National Day to Support Immigrant Workers Rights.” Organizers are seeking “n ational mobilization to support immigrant workers” and are encouraging supporters across the country to schedule rallies or participate in the “Great American Boycott II” on that day. Last year, the roughly 1 million people participated in demonstrations across the nation is support of immigrant workers.

You are wise to consider the possibility that some of your workers may be absent from work on May 1, 2007, and plan in advance what your company’s practice will be in response to employees who are absent from scheduled work because of immigrant worker demonstrations.

The general rule and starting point is that if an employee does not report to work and does not give a reason for the absence, either before or after it occurs, the employee can be disciplined in accordance with your company’s policy. However, the National Labor Relations Act protects employees who “engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” The National Labor Relations Board has issued a variety of decisions holding that employees who miss work to participate in the rallies for the purpose of supporting and aiding in securing protection for illegal/undocumented coworkers (or illegal/undocumented workers in general) are engaged in protected concerted activity. These cases generally involved employees who followed the employer’s procedure for requesting time off or calling in an absence. These decisions may prevent you from disciplining employees who participate in rallies in support of these workers, regardless of whether they are represented by a union, if the employee follows your company procedure in requesting time off. However, if an employee does not follow your company’s procedure for requesting time off in advance, or calling in absent from work on the day of the absence, you may discipline them for violation of the policy, but not for attending a rally or demonstration.

Title VII of the Civil Rights Act and California’s Fair Employment and Housing Act may also affect how you deal with this situation. Both laws prohibit discrimination based on national origin and race. Therefore, your company must make sure that any disciplinary actions taken as a result of employees’ participation in the marches are consistent with your policies and prior practice. For example, if your Company does not grant a Hispanic employee’s request for the day off to attend a rally but grants a non-Hispanic employee’s request for time off to attend a child’s school play, this different treatment could be deemed discriminatory based on national origin and/or race.

Your company should also consider the operational concerns and employee relations aspects of dealing with absences resulting from participation in rallies in support of immigrant workers. Your company must balance its need to continue business operations against the employees’ support of this issue. As a practical matter, depending on the type of business you have and your dependence on foreign workers, your company may choose not to inquire about or discipline employees who are absent from work on May 1, 2007.

If you believe that employees will be absent that day in order to participate in rallies or demonstrations, we suggest your company decide in advance if workers who are absent to participate in rallies or demonstrations will be required to take paid vacation, or will be granted unpaid time off for that purpose, and if a whole or partial day will be granted. This decision should be driven by your company’s written policies or practices for other types of absences. Your company should then communicate its position and attendance expectations to employees before May 1, 2007. If your company plans in advance, it can determine if employees will request time off in advance, and whether the employees will take paid vacation time, or be granted unpaid time off on that day.
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