Dealing with the Workplace Impact of Immigrant Rallies and Protests

As the immigration debate rages in Congress and many state legislatures, a wide range and number of organizations and employees have participated in public rallies and demonstrations.1 Ongoing events are planned throughout the country from California to Massachusetts. On April 10, 2006, some workers left their jobs or failed to report to work to participate in the "National Day of Action for Immigrant Justice." A nationwide work stoppage is planned for May 1, 2006, dubbed by organizers as "A Day Without An Immigrant."

These events have had the intended effect of emphasizing the critical role immigrant workers play in our economy. As this point has been made, employers are faced with increasingly difficult choices.

Demonstrations to Date and Union Participation

Approximately one million people demonstrated on April 10, 2006 in cities including Dallas, Washington, D.C., New York, Salt Lake City, Phoenix and Philadelphia. A larger event is planned for May 1, with calls by organizers for "a general strike, boycott, no sales or purchases, walkouts, marches, and actions in financial centers and at anti-immigrant corporations throughout the country." Those that must work have reportedly been urged to wear white arm bands as a sign of solidarity.

Organized labor has participated in various immigration-related demonstrations as an opportunity to expand its influence. For example, the SEIU has labeled immigration reform as its "spotlight issue" and released a statement by its Executive Vice President describing the demonstrations as a "broad coalition of labor, community, religious, student and other immigrant advocacy groups [] united in a National Day of Action to urge Congress to pass comprehensive immigration reform that makes America more secure, protects all workers, and recognizes the important contribution of immigrants to our economy and American society as a whole . . . ." The Change to Win Coalition claims it "continues to play a leading role in the movement to defend the rights of immigrant workers to join a union and be protected on the job" and concludes this effort "is . . . inextricably linked to the fight for better wages, benefits, and working conditions for all workers." Both organizations have widely publicized the protest events on their websites, and planning meetings have been held at union halls across the country.

Employers Should Carefully Consider the Best Response

As a result of worker participation in the demonstrations, employers have had to deal with attendance and productivity issues. How employers respond affects not only the individuals taking part in the actions, but also the employees who do not. The response also sets the tone for how a situation may be handled in the future.

For example, skipping work to participate in "immigrant justice" rallies could constitute "protected concerted activity" under Section 7 of the National Labor Relations Act (NLRA). This provision grants employees the right to act collectively to express input or concern over their "terms and conditions of employment." While purely political speech has been found to be unconnected to the workplace, and therefore outside the protection of the NLRA, the National Labor Relations Board (NLRB) has found that political speech involving the impact of immigration laws on the workplace may have a sufficient workplace connection to be protected. See Kaiser Engineers, 213 NLRB 752 (1974), enforced, 538 F.2d 1379 (9th Circuit 1976). See also, Eastex, Incorporated v. NLRB, 437 U.S. 556 (1978) (Supreme Court finds protected the writing of a newsletter urging employees to write legislators in opposition to state right to work statute, criticizing the presidential veto of a proposed increase to the federal minimum wage, and urging employees to register to vote to "defeat our enemies and elect our friends.").

Not surprisingly, and as reported by the New York Times, "For Immigrants and Business, Rift on Protests," (April 15, 2006), a number of employees discharged for skipping work to attend April rallies have filed unfair labor practice charges with the NLRB. These employees have claimed a violation of their Section 7 rights to act in furtherance of their mutual aid and protection in connection with terms and conditions of employment. Whether their claims are viable will depend on all facts and circumstances, including the employee's personal motivation for participating in the activities in question.

The wearing of arm bands, pins or other insignia of support of immigrant protests also may constitute protected concerted activity. See Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1954). The NLRB has held that absent "special circumstances," employees have the right to wear pins and other insignia expressing support for workplace-related causes. The NLRB has found special circumstances only when the display of pins or insignia "may jeopardize employee safety, damage machinery or products, exacerbate employee dissention, or unreasonably interfere with a public image which the employer has established, as part of its business plan, through appearance rules for employees." United Parcel Service, 312 NLRB 596 (1993). This standard sets the bar high for employers to ban such activity, and typically "special circumstances" will not be found simply because employees are required to wear a uniform recognized and respected by the public.

In addition to facing potential legal charges, a number of employers already have been the target of negative publicity after discharging rally participants. According to the New York Times article of April 15, nearly 200 fired workers in Wisconsin were reportedly reinstated after protest leaders met with employers, discussed the significance of the protests, and threatened to identify the companies publicly. In addition to the risk of adverse publicity, affected employers could attract the attention of labor leaders closely linked to the immigrant justice demonstrations. As these situations illustrate, an immediate reaction that does not take into consideration all the facts and potential implications could lead to legal charges, adverse publicity and unwelcome union attention.

Some employers have used recent events as an opportunity to deliver an appropriate, proactive message highlighting employer sensitivity to the issue while reaffirming the importance of working assigned shifts. For example, some employers have worked with employees to schedule time off to participate in the rallies; some employers have used temporary labor to cover the absences. These responses have shown respect for the issues and have resulted in minimum disruption and enhancement of positive employee relations.

The following are some steps your organization may wish to consider:

• Communicate with employees before you are confronted with a multitude of requests for time off. Explain your organization's understanding of employee issues and commitment to equal employment opportunity. Underscore the importance of working all assigned shifts and the disruption which would occur without proper notification.
• Prepare a contingency plan to deal with absenteeism and requests for time off. Train management and supervision on the implementation of the plan and the issues that may arise. Designate a central resource to assist with questions and approve potential personnel actions.
• Consider whether to indicate your organization's willingness to work with employees in recognition of planned events, including whether to adjust work schedules or use temporary labor to accommodate requests for time off.
• Consider whether to show support for appropriate events as evidence of your organization's commitment to immigrant causes.
• Understand the legal issues surrounding the wearing of buttons and insignia and determine your organization's legal rights and practical response.
• Consult with employment counsel before threatening employees with a personnel action.

Developing an effective and proactive strategy to deal with the daily challenges in this unfolding situation will depend upon the particular facts and the organization's rights and legal responsibilities. Jackson Lewis attorneys are available to assist in assessing your particular circumstances and in preparing the best approach for your workplace. For more information, please contact the attorney with whom you regularly work or Jonathan Spitz, (404) 525-8200, SpitzJ@jacksonlewis.com

1 The House and Senate currently are debating provisions of the proposed "Comprehensive Immigration Reform Act of 2006." The essential worker provision of the proposed Act permits individuals who have been in the U.S. for more than five years to apply for temporary legal status upon proof of payment of a $2,000 fine; history of working a minimum of 3 years; history of continuous employment; passing a national security and criminal background check; proficiency in English; payment of all federal and state taxes; and registration for selective service, if applicable. These individuals are then eligible to obtain a green card in year six of their residency and may apply for United States citizenship in the twelfth year after being granted temporary legal status. A number of other provisions are also being considered.