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HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Work Stoppage and the NLRA Q&A
Published by Personnel Policy Service, Inc.
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THIS WEEK’S E-TIP: Work Stoppage and the NLRA Q&A
What can you do if nonunion employees walk off the job in protest? Fire
them, right? Wrong. They still have rights under the union organizing
law that protects this type of concerted activity. |
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THIS WEEK’S E-TIP: Work Stoppage and the NLRA Q&A
Q: Last week, several employees walked off in the middle of
their
shift because they did not get their paychecks at the regularly
scheduled
time. A few did not show up for work today as well, apparently a
protest.
We are nonunion. Can we terminate these employees?
A: Since more than one employee was involved in this walkout,
or work
stoppage, the protections of the National Labor Relations Act (NLRA)
may have been triggered and you should carefully consider any
termination action. Further, depending on the payday requirements in
your state, any termination also could violate wage and hour laws.
The NLRA gives employees the right to self-organize; to form, join,
or
assist labor organizations; to bargain collectively through their
own
representatives; and to engage in concerted activities for
collective
bargaining or other mutual aid or protection. A nonunion employer
can
trigger NLRA legal claims when it takes adverse employment action
against employees involved in “concerted activity.” (Download
free Code
of Employer-Employee Relations model policy.)
For a concerted activity to be protected, it generally must center
on a
controversy involving the terms and conditions of employment, such
as a
pay issue. Thus, if employees take action as a group to complain
about
your organization’s policies, such as not being paid on time, their
actions
may be protected. In another example of a work stoppage, in Trompler,
Inc. v. NLRB, 338 F.3d 747 (7th Cir. 2003), the court upheld an NLRB
decision that the employer violated the NLRA when it terminated six
nonunion workers who walked off the job to protest their
supervisor’s
behavior. The court acknowledged that the choice of supervisor is a
management prerogative but said that a supervisor’s conduct that
impairs the terms or conditions of employment for the workers he
supervises is a legitimate subject for concerted activity.
Even if only one employee acts alone, his conduct may be considered
concerted activity protected by the NLRA if he is acting on behalf
of other
employees. So, for example, in NLRB v. Main St. Terrace Care Ctr.,
218
F.3d 531 (6th Cir. 2000), the court found that an employee engaged
in
concerted activity when she talked to management about the wage-
related problems of other employees.
Further, if you terminate employees in this situation you also may
violate
federal and state wage and hour laws. While the federal Fair Labor
Standards Act (FLSA) does not specifically require employers to pay
employees within a particular time period or include a specific
payday
requirement, courts generally have interpreted the FLSA to require
the
prompt payment of wages. (Download
free Pay Procedures model
policy.)
In addition, almost every state has passed legislation specifying
how
frequently certain wage payments must be made to employees. Many
also impose restrictions on how quickly the money must be paid after
it is
earned and require employers to set specific paydays. For example,
California, Illinois, Michigan, and New Jersey all specify a minimum
of
biweekly or semimonthly wages for most categories of employees and
require payment within a period ranging from 10 to 15 days after the
close of each pay period.
And, to complicate matters in this question, the NLRA protection for
your
employees’ protest probably still exists even if there is no
violation of
wage and hour laws on pay timeliness. Therefore, because of the
potential NLRA coverage and wage and hour issues, and not to mention
the complicated employee relations problems involved, you should
consult with legal counsel before taking any adverse action against
these
employees. |
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Subscribers to the
Personnel Policy Manual (print/online) and HR Policy Answers on
CD can find information on NLRA protection for concerted activities
in Code of Employer-Employee Relations, Chapter 105, note 7,and on
payday requirements in Pay Procedures, Chapter 305, note 10.
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