Why Walmart Won't Fire Striking Workers -- And What That Means For You
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.
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.
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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Donna Ballman’s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently released and is currently available for purchase. The book won the Law category of the 2012 USA Best Book Awards. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 ABA Blawg 100 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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