Tuesday, April 11, 2006

The Immigration Rallies and Worker Absenteeism

12peopleFurther Update (4/15): The New York Times has an article today which suggests that many more employers have terminated their employees (perhaps many hundreds or even thousands) for taking part in immigration rallies, though the employees mentioned in the last update were offered their jobs back. Both Professors Craver and Smolla are quoted in the piece for the proposition that employees are relatively free legally to take what actions they want against such employees under current law.  Although some actions do exist for immigrants to remedy the situation as discussed in the original post, I think by and large they are right that employers in an employment at-will regime and maintaining a uniform attendance policy are legally permitted to terminate these employees.  But I still do not see how it is practically in their best interests to do so in most cases.

Update: The Detroit Free Press has a story about an employer firing a number of employees for participating in an immigration rally during their shifts.

One of the angles not significantlly covered about the current wave of immigration rallies is the impact that such rallies are having on the workforces of some employers (story from Market Watch) because of the absenteeism caused by such rallies.  The question is: what legal recourse do employers have against workers who take off work to participate in these rallies?

The answer is probably not much based on they can probably fire them as at-will employees for being absent even in light of some legal considerations mentioned below; though, for practical reasons, it is unclear why employers should want to take any action at all against these employees.

From a legal standpoint, one of the most overlooked aspects of the National Labor Relations Act (NLRA) is that it not only protects unionized workers, and those seeking unionization, in their ability to engage in concerted activity for mutual aid and protection in the workplace, but also protects non-unionized workers, like many of these rallying immigrant workers, in their ability to engage in the same activity.

Consequently, non-unionized workers are also protected against adverse employment action by their employers to the extent that the rallies are considered a type of concerted activity for mutual aid and protection, which is directly related to concerns in the workplace.  To the extent that employers nevertheless take adverse actions based on participating in these rallies, the impacted employees may be able to seek reinstatement and backpay through filing unfair labor practice claims with the NLRB.

Additionally, there might be some employment discrimination-type protection for these workers. Federal and state employment discrimination law protects against both national origin and citizenship discrimination. To the extent that an employer punishes these workers for participating in these immigration rallies, but not other non-immigrant workers who engage in similar rallies or concerted activities, there might be discrimination claims of disparate treatment either under Title VII or the Immigration Reform and Control Act.

Finally, and perhaps the best reason for employers not to take any action against employees participating in immigration rallies is because, from a practical standpoint, it does not serve their interests.  Afterall, many of the same companies and industries that are suffering the most from absent workers because of these rallies are the same companies which have the most to gain through the continuation of the current immigration state of affairs.  It would thus seem in these employers' best interests to encourage these workers to demonstrate for more flexible immigration laws and not to punish them for doing so.



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I'm not so sure the employees are protected from disciplinary action. There is an argument, I suppose, that the protests have something to do with their terms of employment--legal employment versus illegal employment--but a decision to discipline would not necessarily be discriminatory, and it doesn't necessarily restrain or interfere with employees in the exercise of section 7 rights. Presumably, an employer would discipline any other unexcused absence, which leaves the question whether a work stoppage against one's own employer is appropriate or whether protection for such a stoppage is necessary. The employer is an innocent party. He has no control over the matter. And there isn't any reason why the protest has to occur during work and not at some other time.

Posted by: Richard Carlson | Apr 11, 2006 11:27:04 AM

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