Guidance for employers as 'Strike for Black Lives' unfolds

On July 20, 2020, organizers and labor organizations across the country held a "Strike for Black Lives"—a national walkout of workers in support of "dismantling racism and white su-premacy to bring about fundamental changes in our society, economy and workplaces." To limit liability and keep their businesses running, employers must understand employees' legal rights to participate in a one-day political strike. The National Labor Relations Board (NLRB) has inter-preted the National Labor Relations Act (NLRA) to provide important protections to employees who engage in such strikes, and employers should respect the analysis and respond accordingly.

NLRA protects political strikes

The NLRA protects employees' rights to engage in concerted activity, including the right to strike, when the purpose is to improve the terms and conditions of their em-ployment. The "protection" means an employer can't discipline or discharge an employ-ee for engaging in concerted activity.

The NLRB has interpreted the NLRA's protection of concerted activity broadly to in-clude strikes for political purposes. The Act will protect a political strike if (1) its purpose has a "direct nexus" to employee working conditions and (2) the employer has some de-gree of control over the striking workers' objective. To understand why the Board is like-ly to view the one-day "Strike for Black Lives" as protected, it's helpful to look back at another political day of action, the 2017 "Day Without Immigrants."