Question: Some of my employees participated in the “Day Without an Immigrant” protest in February by not coming to work. I am trying to prepare for the possibility that some employees will not come to work on May 1 because of similar protests. While I am sympathetic to these issues, I have a business to run. What should I do?
Answer: Many employers are concerned about how protests might affect their business because they want to ensure productivity, treat workers fairly, and maintain attendance policies. Despite these legitimate concerns, employers should exercise caution before taking disciplinary action against an employee who fails to show up to work because of a protest.
The National Labor Relations Act protects employees who engage in “protected concerted activity,” which is generally defined as two or more employees taking action relating to terms and conditions of employment for their mutual aid or protection. This right applies to both union and nonunion employees. Protests based on work-related issues, including protests to raise the minimum wage and for equal pay for women, would constitute “protected concerted activity.” Whether the planned May 1 protests constitute protected concerted activity is difficult to determine since many workplace rights that are the reported focus of the protest are directly related to working conditions.
California laws that protect employees against immigration-related discrimination, retaliation, and national origin discrimination may apply to employees who participate in the May 1 protest. It is unlawful in California to report or threaten to report the suspected citizenship or immigration status of an employee, former employee, prospective employee or a member of the employee’s family because that person complained about wages or working conditions or exercised a right under the Labor Code, Government Code or Civil Code.
Also, employee participation in the May 1 protest may be protected under a California law that prohibits employers from making or adopting any rules or taking any action that would force employees to follow or refrain from any political action or political activity. An employee’s participation in the May 1 protest may be protected political activity. California law also protects lawful off-duty conduct.
However, if employees are absent in violation of a company’s neutral and regularly enforced attendance and time off policies, discipline may be appropriate. In anticipation of protest conduct that involves unexcused absences, an employer with a neutrally applied policy should remind employees of the policy and inform employees that they may be disciplined for an unexcused absence. But employers need to ensure that such policies are enforced consistently. For example, if the employer excused employees to attend a parade when the Giants won the World Series, but then disciplined those who missed work to participate in a protest that may constitute protected activity, the employer could be liable for violating California or federal law.
Employers may also consider how supporting or opposing the employees’ activity may impact employee productivity and morale, and customer loyalty.
In planning for potential absences due to protest activity, keep the following in mind:
• Communicate with employees about their plans, and plan ahead to staff properly if you know that employees are going to be absent.
• Evaluate each employee’s absence individually when deciding whether to take disciplinary action, and proceed with caution.
• Apply your attendance, vacation and sick leave policies consistently and fairly.