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How to Handle an Employee Who Chooses to Attend a Political Rally in Lieu of Reporting to Work

With 2008 being an election year, there are sure to be many political rallies in the coming

months in support of each presidential candidate. Many employees may choose to attend one of

these political rallies in lieu of reporting to work. Employers are often left wondering whether

they can take disciplinary action against employees who miss work to attend such a rally. The

issue gets particularly sensitive if the purpose of the political rally is to influence legislation that

affects employees’ rights as workers, such as rallies regarding the nation’s immigration laws.

This is because absences to attend a political rally may implicate the National Labor Relations

Act (NLRA).

Section 7 of the NLRA applies to all employees, regardless of whether they are

represented by a union. Section 7 protects the rights of employees to engage in concerted

activities for the purpose of collective bargaining or other mutual aid or protection. Therefore, to

fall under Section 7, an employee’s activity must be “concerted” and “protected.” The National

Labor Relations Board (NLRB), which is the agency charged with enforcing the NLRA, has

defined “concerted” activity as collective activity or the formation of or assistance to a group or

action as a representative on behalf of a group. Activity is considered “protected,” according to

NLRB, if it is intended to improve working conditions or protect employee rights.

In cases decided by NLRB, they have interpreted the phrase “protected concerted

activity” such that protected concerted activity encompasses not only actions targeted to

employees’ actual and specific employer but also to employee efforts to influence legislation that

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affects employees’ rights as workers in general. Employee efforts to influence legislation that

affects their rights as workers in general is not directed to any actual or specific employer. Many

people believe these decisions by NLRB that interpreted “protected and concerted activity” so

broadly support a finding that an employee who misses work to participate in a rally to support

and help secure protection for illegal or undocumented co-workers (or illegal/undocumented

workers in general) has engaged in protected concerted activity.

It is an unfair labor practice for any employer to take action that retaliates against,

interferes with or discourages protected activity. Accordingly, employers risk unlawfully

disciplining or discharging employees for absences attributed to attendance at an immigration

rally or other rally intended to influence legislation that affects workers’ rights. On the other

hand, protests that are purely political in nature and do not involve workers’ rights do not

constitute protected activity.

When it comes to employees missing work to attend immigration rallies or other political

rallies that implicate the NLRA, employers often inquire whether they can require advance

notice for these absences or otherwise restrict participation by employees in these rallies. If an

employer can show that a failure to provide notice will significantly damage a business, perhaps

to the point of shutting the business down, the employer may be able to require advance

notification from employees who chose to attend immigration rallies. The best way to analyze

the potential risks in requiring advance notice is to treat the absence to attend a political rally as a

strike or other work stoppage.

Generally, except in the health care industry, employees and unions are not required to

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give notice of a strike intended to put pressure on a specific employer to accede to its employees’

demands. However, if a strike has a more general purpose with indirect involvement of the

actual employer, NLRB has determined there are competing interests at play in determining

whether the employer can require advance notice for such strikes. Based on these competing

interests, NLRB has articulated a balancing test of employees’ Section 7 rights against an

employer’s legitimate desire to avoid damage to its business. NLRB has stated that where the

Section 7 right is outweighed by an employer’s desire to avoid damage to its business, the

employer can require advance notice, particularly if failing to provide advance notice would

cause unreasonable damage to the business.

For those employers choosing to require advance notice from employees attending

political rallies in lieu of coming to work, the best practice to avoid any unfair labor practice

charge under the NLRA is to issue a company memorandum advising employees of the notice

requirement. The memorandum should include a discussion about the damages the business

would suffer if advance notice is not provided. An employer should consult with legal counsel

before taking any disciplinary action against any employee who fails to provide the required

notice and attends a political rally in lieu of coming to work.

The implication of the NLRA when it comes to absences from work to attend political

rallies does not grant employees the right to lie to their employers. Accordingly, employers may

still discipline employees that lie about the reason for their absences.

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