Immigration protests raise questions for employers

The events are expected to take place 2/16 and today, February 17, 2017. As an employer, if your workers participate in the protest, you will need to decide how to respond. Here are a few issues to consider:

• Find out the reason for the absence. If the employee says it’s for the Day Without Immigrants, ask (politely) what the employee is protesting. The rhetoric surrounding this particular event indicates that most people are protesting against the President and executive agencies, rather than employers or workplace concerns. If that’s true for your workers, then the time off isn’t protected by law. However, proceed with caution if your employees cite wages, hours, or other working conditions as reasons for their absence. Most nonmanagement employees have the right under the National Labor Relations Act (NLRA) to band together for mutual aid and protection, which may include walking off the job to protest labor conditions.
• Explain your attendance policy. Are you willing to allow employees to use accrued vacation or paid time off to support the walkout? If not, let them know that the time off will be unpaid. You should also decide whether the time off will be considered unexcused and therefore subject to disciplinary action. Apply your policy consistently to similarly situated employees, regardless of immigration status or race/ethnicity.
• Be prepared for people calling in sick. If a worker calls in sick on the day of the walkout, your ability to require medical documentation will depend on state and local laws on family and medical leave and paid sick leave. Contact your Vigilant employment attorney before asking for medical verification.
• Consider creative solutions. If a department or a line of business has to shut down as a result of the walkout, consider whether workers could come in on Saturday, February 18 (if that’s still in the same workweek). As long as workers trade shifts within the same workweek, you won’t owe extra overtime pay. (Note: California employees must voluntarily make a written request for this makeup time. See our Legal Guide, “California Wage and Hour—Makeup Time” for other conditions that apply.)

If you have any questions or concerns, particularly if you are considering disciplinary action, contact your Vigilant employment attorney.