In the U.S., workers occasionally engage in organized strikes, picketing, or other forms of coordinated actions designed to call attention to unfair workplace practices. Employees have engaged in these types of organized activities for a long time. However, many workers are hesitant about participating in strikes or picketing because of the fear of being terminated from their jobs. Engaging in a lawful strike cannot be used as a reason for termination. Here is some information from Swartz Swidler about strikes and picketing and your rights.
Can You Be Fired for Striking or Picketing?
Under the National Labor Relations Act (NLRA), employers are prohibited from retaliating against employees for engaging in organized activities, including striking or picketing. Employees can engage in concerted activities to collectively bargain or seek other types of mutual protection or aid. Strikes and picketing are considered types of concerted activities that are protected under the NLRA.
If you are planning a strike at your job, you need to speak to an experienced labor attorney to understand your responsibilities and rights. While lawful strikes are protected, those that are unlawful are not. You should also review your employee manual to see if it addresses strikes, picketing, or walkouts.
Lawful vs. Unlawful Strikes and the NLRA
The National Labor Relations Board (NLRB) is the federal agency that interprets and enforces the NLRA. The NLRA controls the treatment of employees engaged in protected activities by their employers. The NLRB has interpreted the NLRA as protecting employee rights to strike and forbidding employers from firing workers who exercise their rights. Only lawful strikes are protected, however. If you participate in an unlawful strike, you won’t be protected by the NLRA. In that case, your employer can lawfully terminate you from your job.
Some examples of strikes that are illegal include the following:
- Striking or picketing in support of unfair labor practices
- Striking in violation of a no-strike clause contained in an employment contract
- Blocking people from entering the company, using threats, or engaging in violence while striking
The following are some examples of lawful strikes:
- Striking in protest of unfair labor practices
- Striking to obtain higher wages
- Striking peaceably to protest unsafe work conditions
Striking is protected under Section 7 of the NLRA. This law specifies that employees can participate in concerted activities to facilitate collective bargaining. Under Sect. 13 of the law, government officials are prohibited from interfering with or impeding the rights of employees to go on strike.
The NLRB has issued guidelines for what qualifies as a lawful vs. an unlawful strike. Under the NLRB’s guidance, strikes that attack management, threaten the safety of nonparticipants, or physically block the entrance or exit of a business are illegal.
Those employed in the medical field have special rules for striking in some cases under Sect. 8(g). Medical workers must provide 10 or more days of warning to their employer and the Federal Mediation and Conciliation Service before refusing to work or going on strike at a healthcare facility.
Determining when a strike is lawful or unlawful can be difficult in some cases. These types of situations are when the NRLB might be called in to determine whether a strike is legal or unlawful under the NLRA. If you were fired for picketing or striking and need help with determining whether you were engaged in a lawful concerted action, you should speak with a labor lawyer at Swartz Swidler to learn about your rights and legal options.
Your Legal Rights While Going on Strike
If you go on strike because of economic reasons, including low wages, you are normally entitled to keep your job and can’t be fired. However, your employer can replace you. If your employer hires someone to permanently replace you in your position, you do not have the right to be reinstated. However, if you can’t find an equivalent job that offers similar wages and hours that you worked at your previous job, you have the right to be recalled to your previous job if your employer has an opening.
What to Do if You Were Fired for Going on Strike
If your employer fired you for going on strike, and you believe that the strike was lawful, you might have a viable wrongful termination claim. Employers are generally prohibited from firing employees based on their engaging in protected, concerted activities for collective bargaining.
If your strike was lawful, you might be entitled to recover the following types of damages in a wrongful termination claim against your former employer:
- Back pay for the money you would have earned between the time of your termination and when you found another job
- Front pay for the money you would earn if you haven’t been able to find an equivalent job
- Job reinstatement to be restored to your former job
- Emotional distress damages
- Punitive damages if your employer engaged in particularly outrageous conduct
Speak to an Employment Lawyer
While your employer shouldn’t fire you for engaging in a lawful strike, some employers still terminate employees for engaging in protected concerted activities. If you were fired after going on strike, you should speak to an employment lawyer at Swartz Swidler. Call us for a free consultation at (856) 685-7420.
