Why Walmart Won't Fire Striking Workers -- And What That Means For You

Walmart workers strike

You might have heard that non-union workers at Walmarts around the country have been striking. One of the workers' demands is to stop management retaliation against employees who speak up, and in at least one case, Walmart workers went back to work after their employer agreed to many of their demands. But most of the workers have not resolved their issues with the mega-retailer.

So why haven't they all been fired? You may not realize it, but even non-union American workers have the right to strike and take other actions to protest and try to improve working conditions, and they can't be fired in retaliation.

Ready to walk out of your job? Hold on. Before you run out the door, here's what you need to know about your right to protest your own working conditions:

Supervisors can't protest: If you're a supervisor, you're out of luck. The law that protects workers who protest working conditions, the National Labor Relations Act, doesn't apply to you.

There is safety in numbers: If you're protesting your own working conditions, you aren't protected against retaliation. However, if you are objecting to something that affects at least one co-worker, or with at least one co-worker, then you may be legally protected.

You are guaranteed an equivalent job if management fills the position while you're striking: If you walk out (along with co-workers) to seek higher wages, shorter hours, or better working conditions, then you are an "economic striker." That means you are legally protected from being fired, but not from being permanently replaced. You continue to be an employee, and your employer can't fire you for protesting. However, if they hired replacement workers permanently (as opposed to bringing in temps) to keep their business open, they don't have to fire the permanent workers. Once you notify the employer you are ready to go back unconditionally, they need to put you in a substantially equivalent job or recall you for any such job when a position becomes available. If your protest over working conditions is a walkout over unusually dangerous conditions (e.g., radiation exposure, violence, or toxic substances), then you aren't on an economic strike and aren't subject to replacement.

"Unfair labor practice strikers" can't be replaced: If your strike is to protest unfair labor practices by your employer, such as retaliating against workers who discuss or protest working conditions, then you must be reinstated to your job when it's over and cannot be permanently replaced.

More: Walmart Workers: This Is Why We're Striking And Making Black Friday Threat


Picketing is legal: Picketing your employer to protest working conditions or unfair labor practices is protected, subject to certain limitations. You can't block entrances, bully or threaten people trying to enter (including scabs), or engage in violence, but otherwise it is perfectly legal.

You can wear clothing to protest working conditions as long as the clothing isn't disruptive. For instance, if your co-workers and you decide to wear orange shirts to indicate you feel like you're in prison, or even shirts that say, "Inmate," you can't be fired for that. Shirts, buttons and other clothing with foul or offensive language or that are dangerous (such as something that could get caught in a machine) may be prohibited.

You can complain to co-workers about your grievances: You are allowed to discuss wages, benefits and other working conditions with co-workers. Many companies try to prohibit discussion of wages, even putting the prohibition in the handbook or in a contract. NLRB will likely sanction any employer found to do this.

Complaining on social media, though, is permitted but it's tricky: You can post on Facebook that you think your boss is being unfair (or even call him a "scumbag"), as long as you have co-workers who are Facebook friends and your post invites discussion over working conditions. You can't just mock the company unrelated to working conditions and get away with it, so be careful what you post.

Be careful about what you say to HR: You can go to your boss or HR complaining about working conditions as long as you are complaining about conditions that others are encountering as well as you. If you complain about your personal situation, make sure you complain about illegal discrimination (race, age, sex, disability, etc.), workplace safety, unpaid overtime or something else that puts you in a category where you're legally protected from retaliation. Otherwise, they can fire you for complaining that your boss is a jerk, unprofessional or even unethical.

Filing a formal complaint to the government will protect you: If you and at least one other co-worker file an OSHA complaint about unsafe conditions, contact the Department of Labor about unpaid overtime, or seek help from the EEOC on a discrimination issue, your actions are protected under the National Labor Relations Act as concerted activity. If you do it alone, each government agency has its own whistleblower laws that might protect you from retaliation.

More: Walmart Strike: Too Many Disgruntled Workers To Ignore


What Crosses The Legal Line

You must be careful not to cross the line into protesting in a way that is illegal or not legally protected. If you're going to protest, you can't:

Sit-down strike: While you can engage in a work stoppage, sit-down strikes can be tricky. If you strike in a way that doesn't interfere with operations, that's probably legal. You can't just seize your office and refuse to leave. Once the employer tells you to leave, you have to take it outside or you could be guilty of trespassing.

Work slowdown: Unlike a work stoppage, a slowdown isn't protected. If you go to work, you have to work. Once you accept work from the employer, you have to do it at normal speed.

Partial strike: You can't strike by saying you will do certain duties but not others. If you work, you have to perform all your job duties.

Intermittent strike: While a walkout for an hour, a partial day, or even a day may be protected, you can't decide to strike for, say, an hour a day or one day a week.

Government workers: Some federal and state laws prohibit government workers from striking. Railway workers, healthcare workers, and some first responders and teachers aren't allowed to or have limits on their ability to strike. A strike can also be stopped if it will create a national emergency.


In general, there's no free speech protection at work, so be careful if you're protesting working conditions. If you think your employer has broken the law by retaliating against you for discussing or protesting working conditions, you can file a Charge Against Employer with the NLRB, or check with an employment lawyer in your state.


If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me on AOL Jobs.

Please note: Anything you write to me can be featured in one of my columns.





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witherssedric

You may not know it, but under Federal Law and the National Labor Relations Act, even non-union American workers have the right to strike and take other actions to protest and try to improve working conditions, and they can't be fired in retaliation.
You are guaranteed an equivalent job if management fills the position while you're striking: If you walk out (along with coworkers) to seek higher wages, or better working conditions, then you are an "economic striker." That means you are legally protected from being fired. You continue to be an employee, and your employer can't fire you for protesting.
If your strike is to protest unfair labor practices by your employer, such as retaliating against workers who discuss or protest working conditions, then you must be reinstated to your job when it's over and cannot be permanently replaced.

Pleas read and sign the Black Friday Concerted Activity Notice, give it to a salaried member of management, and DON’T show up for work on Black Friday unless the demands are met. Simple as that!

http://jobs.aol.com/articles/2012/10/15/walmart-striking-workers-non-unionized/

October 31 2012 at 11:01 AM Report abuse rate up rate down Reply
John Dillinger

Walmart tells you the deal before youre hired,so dont act shocked and act like a baby after you accept their work requirements

October 19 2012 at 8:55 AM Report abuse rate up rate down Reply
jacksparrow29906

There is one important fact,here in South Carolina.You can be fire no matter what, in this this state ! The company or business that you work for can fire you for whatever reason they want.You do not have any protection in South Carolina.....What about other states ? So if you decide to fight the " GIANT " AKA...WALMART,in S.C.,be prepared to lose your job.....But if there are enough of you to walk out/stick together then maybe you have a chance,I don't think so...This is why so many people working for WalMart ,in S.C. will not do anything because of what will happen to them.....Way to go South Carolina !

October 16 2012 at 6:10 AM Report abuse rate up rate down Reply
1 reply to jacksparrow29906's comment
EmployeeAtty

Every state is at-will except Montana. But federal law applies to workers in every state. The National Labor Relations Act applies to almost all employees who aren’t supervisors, and to most employers.

October 16 2012 at 9:33 AM Report abuse rate up rate down Reply
Robert Snodgrass

ATTN: this is all bull, do not believe it. Walmart breaks these laws openly with full knowledge of the NLRB and nothing is done about it. I was fired for reporting a walmart managers ongoing abuse of employees including a handicapped girl who could be heard hysterically crying across the store, that other employees were afraid to report. The NLRB filed a charge and I got my job back, but not for long. walmart managment attacked me with fraudulent write-ups and wrongful firings. I took every precaution to legally protect myself. i had a perfectly obvious illegal retaliation case. The NLRB told me what Walmart did to me is ILLEGAL, and we are taking them to court, then 2-days later called me to say that they spoke to the walmart lawyer and very suspiciously no longer want to pursue the case and dismissed it, I studied the laws and worked very hard to build up 4 folders full of absolute proof of every possible aspect about this case with eyewtness statements, documentation, and even a police statement proving that walmart intentionally lied to federal NLRB investigators in order to have the case dismissed and avoid chagres. (a federal crime) I contacted the NLRB,EEOC, Human Rights, every agency there is and Senators and Congressman, even wrote to the Obama adin., and despite there being no question at all that Walmart clearly violated numerous labor and even criminal laws, there was no action taken and they refused to pursue the case. I lost my job, 10-years of my life invested in the company, and any chance of ever retiring in my lifetime, all because i reported the abuse of employees and particularly a handicapped girl by a walmart manager that everyone else was afraid to report. Whatever the law says does not matter at all to Walmart employees. I can prove to you that Walmart operates above the law with full knowledge of our government. Contact me at snod307@hotmail.com or call 484-252-9596 my name is Robert Snodgrass, address 715 Taylor rd, Downingtown, Pa. 19335
just nowReport abusePermalink

October 16 2012 at 2:50 AM Report abuse rate up rate down Reply
1 reply to Robert Snodgrass's comment
EmployeeAtty

I’m sorry to hear you had a bad experience. I’m not sure why EEOC wouldn’t take your case if NLRB dropped it. Assuming you filed within 180 days (300 days in some states), they should have handled a charge of retaliation for reporting disability discrimination and harassment.

October 16 2012 at 9:36 AM Report abuse rate up rate down Reply
Robert Snodgrass

ATTN: this is all bull, do not believe it. Walmart breaks these laws openly with full knowledge of the NLRB and nothing is done about it. I was fired for reporting a walmart managers ogoing abuse of a hadicapped girl that could be heard hysterically crying across the store, and other employees, that other employees were afraid to report. The NLRB filed a charge and I got my job back, but not for long. walmart managment attacked me with fraudulent write-ups and wrongful firings. I took every precaution to legally protect myself. i had a perfectly obvious illegal retaliation case. The NLRB told me what Walmart did to me is ILLEGAL, and we are taking them to court, then 2-days later called me to say that they spoke to the walmart lawyer and very suspiciously no longer want to pursue the case and dismissed it, I studied the laws and worked very hard to build up 4 folders full of absolute proof of every possible aspect about this case with eyewtness statements, documentation, and even a police statement proving that walmart intentionally lied to federal NLRB investigators in order to have the case dismissed and avoid chagres. (a federal crime) I contacted the NLRB,EEOC, Human Rights, every agency there is and Senators and Congressman, even wrote to the Obama adin., and despite there being no question at all that Walmart clearly violated numerous labor and even criminal laws, there was no action taken and they refused to pursue the case. I lost my job, 10-years of my life invested in the company, and any chance of ever retiring in my lifetime, all because i reported the abuse of employees and particularly a handicapped girl by a walmart manager that everyone else was afraid to report. Whatever the law says does not matter at all to Walmart employees. I can prove to you that Walmart operates above the law with full knowledge of our government. Contact me at snod307@hotmail.com or call 484-252-9596 my name is Robert Snodgrass, address 715 Taylor rd, Downingtown, Pa. 19335

October 16 2012 at 2:45 AM Report abuse rate up rate down Reply
Alexander Lotorto

Still, there are a lot of ways management can and probably will retaliate. In the union drive I was in at a call center, they fired one of the organizers by "losing" his vacation slip and saying he didn't come to work when he was on a trip he notified them of. They fired me when I called in that was I going to be late because my bus was behind an accident and was going to be ten minutes late. I was nine minutes late and didn't take a break to make up for it, but they fired me with a grimace on their faces at the end of the night. Just a couple examples.

October 16 2012 at 12:14 AM Report abuse rate up rate down Reply
1 reply to Alexander Lotorto's comment
EmployeeAtty

Yes, there are lots of ways employers can retaliate if they are dishonest. For a situation where someone is fired for being 9 minutes late, I’d suggest looking around to see if anyone else had been late the same amount of time who wasn’t fired. If so, it might be time to talk to the NLRB about an unfair labor practices charge if it occurred right after a strike or other activity protesting working conditions.

October 16 2012 at 12:56 AM Report abuse rate up rate down Reply
1 reply to EmployeeAtty's comment
Robert Snodgrass

Robert Snodgrass
ATTN: this is all bull, do not believe it. Walmart breaks these laws openly with full knowledge of the NLRB and nothing is done about it. I was fired for reporting a walmart managers ongoing abuse of employees including a handicapped girl who could be heard hysterically crying across the store, that other employees were afraid to report. The NLRB filed a charge and I got my job back, but not for long. walmart managment attacked me with fraudulent write-ups and wrongful firings. I took every precaution to legally protect myself. i had a perfectly obvious illegal retaliation case. The NLRB told me what Walmart did to me is ILLEGAL, and we are taking them to court, then 2-days later called me to say that they spoke to the walmart lawyer and very suspiciously no longer want to pursue the case and dismissed it, I studied the laws and worked very hard to build up 4 folders full of absolute proof of every possible aspect about this case with eyewtness statements, documentation, and even a police statement proving that walmart intentionally lied to federal NLRB investigators in order to have the case dismissed and avoid chagres. (a federal crime) I contacted the NLRB,EEOC, Human Rights, every agency there is and Senators and Congressman, even wrote to the Obama adin., and despite there being no question at all that Walmart clearly violated numerous labor and even criminal laws, there was no action taken and they refused to pursue the case. I lost my job, 10-years of my life invested in the company, and any chance of ever retiring in my lifetime, all because i reported the abuse of employees and particularly a handicapped girl by a walmart manager that everyone else was afraid to report. Whatever the law says does not matter at all to Walmart employees. I can prove to you that Walmart operates above the law with full knowledge of our government. Contact me at snod307@hotmail.com or call 484-252-9596 my name is Robert Snodgrass, address 715 Taylor rd, Downingtown, Pa. 19335

October 16 2012 at 2:55 AM Report abuse rate up rate down

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