PUBLICATIONS

Many employers have recently experienced increased incidents of absences due to employees participating in immigration reform rallies.  With more rallies likely, employers need to be prepared to deal with future absences. 

In the past several weeks, many employers have experienced increased incidents of employees not reporting for work to participate in immigration reform rallies. It is anticipated that additional marches will occur around the country over the next few weeks, and some groups have announced a "Day Without An Immigrant" or "En Gran Boycott" planned for May 1. Employers in the Hospitality Industry must be especially careful in responding to absenteeism resulting from employee participation in these events given the industry's high level of dependence on immigrant labor.

From a legal perspective, employers must consider implications under various laws, including the National Labor Relations Act's (NLRA) protection of protected concerted activity, Title VII's race and national origin nondiscrimination provisions, and, possibly, state and local laws.

Generally, an employee who does not report to work and gives no reason, either before or after the absence, can be subject to the employer's existing disciplinary policy.

The NLRA protects employees who "engage in ... concerted activities for the purpose of ... mutual aid or protection." The National Labor Relations Board (NLRB) (the agency charged with enforcing the NLRA) has issued some decisions that could lend support to a finding that an employee who misses work to participate in one of these rallies for the purpose of supporting and aiding in securing protection for illegal/undocumented co-workers (or illegal/undocumented workers in general) engages in protected concerted activity. This means that any disciplinary action taken against the employee could be unlawful, regardless of whether the employee is represented by a union. Moreover, rights granted under a collective bargaining agreement may provide additional protection to employees covered by the agreement.

Other laws, such as Title VII, may also impact how an employer deals with this situation. Employers must be careful to ensure that any disciplinary actions taken as a result of employees' participation in these marches are consistent with the employer's existing policy and past practices in enforcing the existing policy. For example, not granting an Hispanic employee's request for the day off to attend a rally but granting a non-Hispanic employee's request for time off to attend a child's school play, or terminating an Hispanic employee on his first no-call/no-show for attending an immigration reform rally but only giving a written warning to a non-Hispanic employee for his first no-call/no-show could implicate Title VII's national origin and race discrimination provisions.

In addition to the legal aspects of dealing with absences resulting from these marches, employers must also consider the public relations and operational challenges presented. Particularly in the Hospitality Industry, due to its heavy dependence on foreign workers, employers may decide not to take a hard line on discipline of these individuals. As a practical matter, some employers may have such a high percentage of employees participating that disciplining or terminating all of them may cripple the company or a facility's operations.

Employers' Bottom Line:

Knowing that more rallies are likely in the near future, and that a one-day "strike" may be in the works, we strongly encourage all employers to be proactive in their approach to handling this extremely sensitive situation. Employers should consider reaching out to or increasing communication with their employees in an effort to avoid creating an "us versus them" atmosphere on this issue that could push non-unionized employees toward the unions who are, in many cases, playing an active role in these rallies. You may want to prepare talking points or guidelines for department and/or Human Resources managers who may be required to handle these types of situations. These guidelines should attempt to balance the desires of the employees with the operational needs of the business and the practical impact of employees ignoring a company position they view as too strict. The approach you take will depend on your workplace demographics and the sensitivity of your business to work interruptions and public relations. Above all though, plan for this activity and do not simply rely on the policies you have in place without considering whether those policies adequately address the situation.