With the recent passage in Arizona of a controversial immigration-related state law and indications from the Obama administration and Congress that comprehensive immigration reform legislation will be put on the fast-track, it is quite possible that we may soon be seeing more immigrants’ rights demonstrations such as we saw on May 1, 2010. These rallies occurred on a Saturday, obviously a non-work day for most who attended. Unfortunately, the 2006 demonstrations like the “Day Without Immigrants” occurred during the workweek, invariably resulting in employees missing work to participate. The economic impact of such mass absences on employers’ operations whenever they occur is obviously a legitimate concern that may have to be addressed in the coming months. All employers, but especially those with a substantial number of Hispanic employees, should be concerned as well as prepared.

As a result of employer action in terminating employees in several cases arising out of the 2006 demonstrations when employees chose to attend an immigration rally instead of working, the National Labor Relations Board (NLRB) was forced to address whether such conduct was protected activity under Section 7 of the National Labor Relations Act (NLRA). Fortunately, in each instance presented, the NLRB found that disciplinary action, including discharge, was proper. Subsequently, the NLRB issued guidelines for dealing with situations involving employee discipline for what they refer to as “political advocacy.” In its analysis, the NLRB concluded that employees who failed to report to work to participate in an immigrant rights rally were in essence striking for their “mutual aid and protection.” However, similar to other unlawful activities such as secondary boycotts, slow-downs, and sit-down strikes, the employee actions were not protected by the NLRA. This does not necessarily mean that termination is the best answer, even if found legal by the NLRB, as will be discussed below.

The key to taking defensible disciplinary action, including discharge, is to base it upon lawful, neutrally-applied work rules. Have other employees engaging in similar conduct, e.g., no call/no show, been treated in a similar fashion? Put another way, have the rules been applied consistently in similar circumstances? The burden will be on the employer to demonstrate non-discriminatory rule enforcement. But the potential issues do not end with how the NLRB may see the disciplinary action if unfair labor practice charges are filed. There is also the potential for claims of discrimination based upon national origin or ethnicity. Many protestors at these demonstrations are illegal immigrants from Mexico or Central America, or Hispanic U.S. citizens that support their cause. Any disciplinary action that singles out members of one national origin or ethnicity could be considered discriminatory under Title VII of the Civil Rights Act. Despite the fact that there were no reported cases of such claims in the 2006 demonstrations, the possibility remains that a more aggressive Equal Employment Opportunity Commission (EEOC) as we have today would be sympathetic to such charges.

While it would be a stretch of the law, some workers might also be able to claim religious discrimination. Immigration reform has received significant support from some clergy, in particular, the Catholic Church. They have been particularly vocal about the Arizona law and its potential effect on the immigrant community. One such group, the National Coalition of Latino Clergy and Christian Leaders, was among the first to file suit challenging the constitutionality of the Arizona law. In addition, several high ranking officials of the Catholic Church have vigorously criticized the new law. If religious groups such as the Catholic Church were to encourage their members to participate in the immigrant rights rallies, it is possible that any disciplinary action against employees who missed work to participate could arguably be considered discrimination on the basis of their religion. Again, today’s more employee-friendly EEOC might accept such a novel charge.

In addition to the protections of these federal laws, some states also provide state law protection for certain activities that involve the expression of a person’s views. For example, the state of Connecticut prohibits employers from disciplining employees for exercising their rights under the freedom of speech provisions of the U.S. Constitution’s First Amendment, as well as the Connecticut Constitution’s free speech clause. Other states may have similar prohibitions, so a thorough review of state law is in order before an employer takes such drastic action as discharging an employee for “political advocacy.”

Workers who miss work to participate in immigration protests could argue that some or all of these laws protect them from disciplinary action. While many interesting legal arguments could be made against such protection, employers should be cautious in handling these issues so that they do not become a test case. The best way to avoid or minimize problems is to have appropriate policies in place. There should be a clear and consistently enforced attendance policy that is well-documented. Employees should be reminded of the policy and the consequences of not complying. The best approach would be for companies addressing these issues to treat absence for attending immigrant rights or similar rallies the same way that they would treat any other absence, excused or unexcused, depending upon the employer’s attendance policy. If policies are in place that call for disciplining employees who fail to give notice of an absence or who are not authorized to take any additional time off, the best practice would be to treat absent employees in accordance with these policies. However, while the NLRB has ruled that discharge of employees who fail to report to work to engage in “political advocacy” may be permissible in some circumstances, employers who wish to discharge such employees should proceed with caution. Discharge in today’s litigious environment is the employer action most likely to result in legal challenge.

Publication date: 06/21/2010