Preparing for the Planned May 1, 2006 Labor Strike
1. What is the May 1, 2006 strike that I have heard about and should I be concerned?
May 1 is known as the International Day of the Worker in Mexico. Opponents of recent immigration legislation are using this day to call for "The First American Strike" or "Great American Boycott," a worker strike and boycott to protest recent congressional attempts to crack down on illegal immigration. The strike is meant to underscore the value of Latino workers to the nation's economy and rally against the recently introduced federal legislation. All employers should be concerned about this strike as it is expected to garner unprecedented support from the immigrant workforce and those that support their causes.
2. How can I prepare for and respond to this strike in a manner that allows me to continue operating my business but limits my legal exposure?
A. Employers Can Enforce Their Attendance Policies.
You can certainly enforce your existing attendance policies in responding to employees who do not show up for work on May 1. However, you should refrain from aggressively enforcing their attendance/absenteeism policies beyond normal enforcement. Employers who deviate from their normal attendance/absenteeism policies to severely discipline their employees for being absent on May 1, 2006 may be liable for improperly interfering with their employees' political activities.
B. Do Not Demean The Strike Or Threaten/Demean Employees Who Support Or Want to Participate In the Strike.
Being exasperated by the strike is understandable, but employers need to be careful to ensure that their reaction cannot be interpreted as demeaning the strike or the individuals who voice support for the strike. In addition to potential liability for interfering with their employees' political activities, employers' conduct that could be construed as demeaning or threatening to their employees may be used as evidence of discriminatory animus for disparate treatment claims.
C. Communicate With Your Employees About the Strike Up Front.
Talk to your employees, so you can determine the impact of the May 1, 2006 strike on your operations. If you are in the retail industry, restaurant industry or another service industry that serves the general public, then the impact may not be as severe because May 1 is a Monday. Mondays are generally light days for many service industries, and you may have staff members who normally do not work on Mondays. You can determine who wants to take off May 1 and who is not interested in taking off May 1. Some employees who generally do not work on Mondays may be willing to "pick up an extra shift."
If Monday is not a light day for your industry, you should still communicate with your employees to determine who wants to come to work. You may need to have your operations open on Sunday, have some employees work overtime on Monday, or make other operational adjustments, but if you communicate with your employees beforehand, you will at least have the opportunity to plan for the day rather than simply responding to the situation on May 1.
D. Remind Employees About Your Attendance Policy.
Remind employees about your absenteeism/attendance policy, your policy for requesting days off, your no show/no call policy, and your policy on falsifying the reason for being absent. Consistent enforcement of such policies are not considered to be discriminatory or improper.
E. Provide May 1, 2006 Off To As Many Employees As Your Operations Allow.
Provide May 1, 2006 off to those employees who follow the procedure for requesting the day off to the fullest extent your operations allow. If you revise your schedule to allow employees to have the day off - Document it! If you provide the day off to a large number of employees who properly requested it off - Document it! You want to demonstrate that you provided the day off to as many people as your operations would allow if you get sued by those employees who did not get it off. Use objective criteria such as seniority to decide which employees get the day off if you have more employees requesting the day off than you can accommodate.
F. Be Creative in Your Staffing For May 1, 2006.
Look at your staffing needs on May 1, 2006 and find creative ways to solve them. Can you have your operations open on Sunday and provide Monday off to everyone? Can you pull employees from other departments? Do you have departments that can go dark on Monday? Can you provide those department's employees some training that will allow them to perform the essential duties that must be completed on May 1, 2006?
For example, if you are a manufacturer and expect most of your workforce to be absent on Monday, can you have your employees work on Sunday? If you are in the restaurant industry and most of the workers that you expect to be absent on May 1, 2006 are kitchen employees, can you do food preparation on Sunday? Will one of your food servers volunteer to be a dishwasher on Monday?
G. Explain Why You Cannot Provide The Day Off To Those Employees Whose Requests You Cannot Honor Because Of Your Operational Needs.
After looking at creative ways to schedule and staff your gaps, you may still not be able to accommodate everyone's request to have the day off. For those employees whose requests you cannot accommodate, explain that you cannot honor their requests because of your operational needs. Also remind them that you expect them to be at work on May 1, 2006. Provide them copies of your absenteeism/attendance policy, your no show/no call policy, and your policy on falsifying the reason for being absent.
H. Enforce Your Absenteeism/Attendance Policy In The Same Manner As You Have In the Past.
If you have been lax or inconsistent with enforcing your attendance policies, May 1, 2006 is not the day to get tough. If you do decide to discipline employees for missing May 1, look at other factors in determining the appropriate discipline: How frequently has the absent employee been absent in the past; what is that employee's past disciplinary record and performance; how long has the employee been employed by you; how effectively have you communicated your attendance policy to your employees; and what progressive discipline or other corrective actions have you used for past violations. Make sure the discipline you impose for the May 1, 2006 absence is equivalent to the disciplinary measures you normally impose for such violations.
I. If Your Business Is At Risk of Not Having Enough Workers, Consider Incentive Pay or Other Incentives to All Workers that Work on May 1.
If you have credible information that leads you to believe that you are not likely to have a sufficient number of workers to operate your business, consider offering incentives. For example, employers can offer incentive pay such as double time or bonuses to all workers who work on May 1. If you are supporting the strike but need your workers to come to work, you can offer to make a donation to the primary political group organizing the strike, the Immigration Solidarity Network, for each worker that comes to work on May 1 as an incentive to encourage your workforce to come to work (click here for a link to the Immigration Solidarity Network). The two keys to lawfully implementing such incentives are to (1) make sure that you really have a legitimate risk of not having enough workers to operate your business efficiently before implementing any incentive program, and (2) make sure that you offer the incentives to every single employee that works on May 1 - do not limit the incentive only to those employees whom you believe will not come to work. Such limitation could be prima facie evidence of discrimination.
J. Remember To Properly Review Your I-9 Forms
May 1, 2006 may not be the day to review your I-9 Forms, but the immigration debate has also put pressure on U.S. Citizenship and Immigration Services ("USCIS") to more aggressively enforce the immigration laws that are currently on the books. As a result, employers face the heightened risk of aggressive government enforcement, the material disruption to their operations a raid may cause and criminal liability for their corporate officers. On the other hand, employers who overreact to such risks and who improperly target employees when performing an I-9 audit may face claims of discrimination under the Immigration Reform and Control Act of 1986. Employers interested in such audits are therefore advised to retain legal counsel.
3.Where can I get more information about this strike?
You can get more information about the strike at either of the following websites (which are run by the strike organizers): www.immigrantsolidarity.org or www.actionla.org. If you have any legal questions about how to respond to the strike, you should contact your employment law attorney. At Carothers, DiSante, & Freudenberger, you should contact the following individuals:
San Diego - David Osborne - firstname.lastname@example.org
Irvine - Chris Carlton - email@example.com
Los Angeles - Brian Van Vleck - firstname.lastname@example.org
San Francisco - Heather Sager - email@example.com
Sacramento - Mark S. Spring - firstname.lastname@example.org