Those who walk off the job to participate in a proimmigration march most likely don’t have the law on their side, a Valley labor law expert said Monday.
Employers should treat the absence the same they would any other, excused or unexcused, said Joe Clees, an attorney in the Valley office of Ogletree Deakins, a national labor and employment law firm.
“If the employer has a policy that would permit an excused absence under these circumstances, then it needs to be treated consistent with how it handles other absenteeism issues,” he said.
“If it (the policy) penalizes employees who don’t give notice or aren’t authorized to take additional time off, then it would probably be appropriate in this situation to treat the same person consistent with the company’s discipline and counseling policies.”
A number of Clees’ clients are trying to tackle problems before they start by meeting with employees, especially if they know certain work forces are likely to participate in a protest.
“Some of them have just sat down with employees and tried to figure out who’s going to go and who’s going to stay and work out a schedule accordingly,” he said.
“In a tight labor market, employers sometimes tend to be a little more generous than the law would require them to be in these situations because while they might have the legal right to let somebody go, as a practical matter they need help.”
Other companies have sent employees blanket reminders concerning their attendance policies.
Some attorneys say employers should be mindful that participation in the marches may constitute protected concerted activity under the National Labor Relations Act.
Section 7 of the act grants employees the right to selforganize; form, join or assist labor organizations; bargain collectively through representatives of their own choosing; and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
Some National Labor Relations Board case law shows political speech activities were found to be protected because employees were expressing fear over job security.
Officials at the American Civil Liberties Union of Arizona said they are urging employers to “just be respectful and understand that people, of course, want to exercise their First Amendment rights,” said Alessandra Soler Meetze, executive director.
As a compromise, she suggests participating on lunch hours and breaks.