With a presidential election only months away and controversy continuing over immigration reform, political activity among workers at many businesses is on the rise. Many employers, including non-union businesses, may find themselves confronted with the question of whether they can discipline employees for political activity that takes place in the workplace or for activities that occur when employees are absent from work without permission or excuse, such as attending a rally relating to a political cause or candidate. These problems pertain to non-union companies as well as unionized ones since whether they know it or not, the typical non-union company is covered by the National Labor Relations Act. Recognizing that this is a real-life issue, the National Labor Relations Board (NLRB) General Counsel recently issued a Guideline Memorandum outlining when employers may discipline employees engaged in political advocacy.
The law protects employees who engage in concerted activity for "mutual aid or protection." Generally speaking, the courts and NLRB have interpreted this language to mean that an employer may not discipline an employee who engages in conduct to make the employer aware of employee concerns related to wages, hours, or working conditions.
Protection of employee political activity has extended to employees who engage in activities in support of employees of other companies or seek to improve their lot as employees through channels outside of the immediate employee-employer relationship. This kind of political advocacy is protected from discipline only when its subject has a direct nexus to employee working conditions. Accordingly, employee appeals to legislators, governmental agencies, and regulatory bodies, such as accreditation boards and those who issue licenses or permits, are protected if the substance of the appeal is directly related to the employee's working conditions. For instance, the NLRB found that school bus drivers' letters to the school district complaining that a new contractor would not maintain the same working conditions as its predecessor were protected, but letters related to general safety concerns on behalf of students were not. Similarly, nurses who informed state agencies about staffing levels could not be lawfully disciplined, but discipline was proper when they complained about the quality of patient care.
Once it is determined that the subject of employee advocacy is protected, the inquiry turns to whether the employees' actions in furtherance of that advocacy - the means by which the advocacy is undertaken - are protected from discipline or some other form of adverse employment action. The NLRB has held that employers may not discipline employees for political advocacy conducted during non-work time in non-work areas absent disruption of work operations. Conversely, employers may lawfully discipline employees for on-duty political advocacy, even if it is related to a specifically identified employment concern, so long as the work rule the employer enforces is lawful and neutrally applied.
The most troublesome situation arises when employees leave work during working hours to join a rally or otherwise advocate a political cause. Generally speaking - and this may be surprising to many employers - an employer cannot discharge or otherwise discipline employees who leave work without permission if they do so for the purpose of obtaining from their employer some improvement in their working conditions. The law protects strikes as a "lawful instrument" in the "economic struggle...between employer and employee...." On the other hand, employees who absent themselves from work to advocate a political cause related to their working conditions are not protected from discipline because their employer cannot control the outcome of the political process. Accordingly, these employees are lawfully subject to discipline. Also, an employer may discipline an employee who leaves work without permission or takes an unexcused absence when the employee is not protesting a specific work-related condition, but rather is rallying in support of immigration reform or a political candidate.
So what does this all mean for an employer whose employees are not represented by a union? If employees engage in political advocacy outside of work and working time that directly relates to their working conditions, they are protected from discipline. If employees come to the employer with concerns related to their wages, hours, or working conditions, they are protected if they walk out or do not show up for work in protest over those concerns. However, if employees advocate a political cause related to their working conditions, but do so during working time, the employer can lawfully discipline them since such conduct is inherently disruptive. Similarly, employees who leave work without permission to engage in political activity, such as rallies, are lawfully subject to employer discipline if the cause they advocate, although work-related, is not within the employer's control since the general rule - that employees may leave work in protest of work-related terms and conditions - does not apply when the employer cannot rectify the subject of the employees' political advocacy.
Application of these principles requires careful analysis since imposition of discipline, particularly the decision to discharge, can result in significant liability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
