Proponents of social media have been calling for U.S. workers to walk off their jobs in a nationwide general strike on February 17 in light of recent political developments. Nationwide general strikes are common in Europe and in other countries around the world, but such an idea has never gained much traction in the United States. However, given the current political climate, employers should be prepared in the event workers decide to walk off the job.

The National Labor Relations Act (“NLRA”) provides rights to employees who are engaged in “concerted activities for the purpose of . . . mutual aid or protection.” It is not lawful under the NLRA for employers to “interfere with, restrain, or coerce employees” in the exercise of these rights. In other words, an employer cannot broadly terminate its striking workforce. The Supreme Court has held that protected activities include protesting larger political issues beyond a specific workplace (Eastex, Inc. v. NLRB, 437 U.S. 556 (1978)). The NLRA, however, defines an “employee” in such a way that excludes supervisors and independent contractors, among others.

So what should employers do if workers either don’t come to work or walk off the work site as a part of a general strike?

Employers have a few options. It is permissible to:

• Prohibit supervisors and managers from striking.
• Urge striking employees to return to work without any threats of reprisals or promise of benefits.
• Stop paying striking employees and stop contributing to their benefits.
• Terminate or discipline a striking employee who engages in serious misconduct, such as using violence or destroying the employer’s property.
• Replace striking employees with temporary workers or have managerial or supervisory personnel perform their jobs to maintain business operations.

Jen Cornell regularly counsels employers regarding the NLRA. Contact her at 612.305.7717 or jcornell@nilanjohnson.com.