Punish employees who ‘occupy’ in their spare time?

November 1, 2011
in Employment Law,HR / Employee Relations

Q. What recourse do employers have against employees involved in ‘Occupy [Wherever]’ protests during off-time?

A. “Occupy” movements are springing up in towns all across the country. It’s important for employers to be wary of terminating or disciplining employees who attend these demonstrations without consulting with legal counsel first.

On Nov. 2, 2011, Occupy Oakland protestors in Cali­for­nia called for a general strike, crippling employers and business in the surrounding area. The Occupy protests aren’t the first to test employers in this way. In fact, protesters may enjoy some protection because of federal law.

A similar strike occurred in 1946, involving retail clerks who were picketing two downtown Oakland de­­part­­ment stores. The managers requested help from 250 police officers to escort nonunion delivery trucks headed for the stores. That prompted the American Federation of Labor to unanimously vote to strike, urging 100,000 workers from 142 unions to declare a “work holiday” and walk off the job. The strike finally ended, after 54 hours, when the city promised to stop sending “scab” delivery trucks.

The National Labor Relations Act, as well as the laws in many states, protects employees who engage in off-duty concerted activities, such as in the protest of inadequate wages or unfair working conditions. Employees have the right to self-organization, to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. (29 U.S.C. § 157)

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