On July 20, 2020, a mass walkout is scheduled to take place across the country. Supported by a coalition of national labor unions along with a number of racial and social justice organizations, the Strike for Black Lives continues the protest against systemic racism and police brutality.
With a goal of raising wages and allowing union formation across industries, the walkout is expected to consist of thousands of fast food, ride-share, nursing home, and airport workers, among others. If you or someone you know is planning to take part in the walkout, you may have a few questions about your legal rights.
Can I be fired for going on strike or walking out?
No, an employee cannot be fired for striking or walking out. The National Labor Relations Act states that “Employees have the right…to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Strikes and walkouts fall under the category of concerted activities protected for employees.
If you are an employee planning to strike or an employer with striking employees, you should talk to a lawyer to understand the scope of your rights and responsibilities. It is also recommended that you review your Employee Handbook to determine if there is any specific language related to planned concerted actions like strikes and walkouts.
What constitutes a lawful strike?
The lawfulness of a strike is dependent on several factors: the purpose, timing, and the conduct of the strikers. The National Labor Relations Board (NLRB) makes decisions based on the factors listed above.
The two classes of lawful strikers are economic strikers and unfair labor practice strikers. If a strike is for higher wages, shorter hours, or better working conditions, participants may be classified as economic strikers. The other type of striker would be someone protesting unfair labor practices, which includes an employer blocking employees from unionizing and entering collective bargaining.
What are my legal rights when going on strike?
Economic strikers are typically entitled to retain their status as employees and they cannot be discharged, but they may be replaced by their employer. If the employer has hired permanent replacements, the strikers are not entitled to reinstatement. That said, if the strikers cannot find regular and equivalent employment (long-term similar hours and wages), they are generally entitled to be recalled to work if there is an opening.
If you feel that you have been retaliated against unfairly for participating in a strike or protest, it is best to talk to a lawyer.
What if I get arrested while protesting?
In case you are arrested while protesting, it is important to remember that you have the constitutional right to remain silent and you have the right to an attorney. Before you attend a strike or a protest, you should memorize or have written down the number of an attorney, a legal defense organization, or a trusted contact that is able to make these phone calls for you. Learn more about how to protest legally and safely.
Know your rights
By understanding your rights and responsibilities, you’ll be able to go on strike or walk out while minimizing your legal exposure. If you have additional questions or concerns about your specific situation, talk to a lawyer.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.