Preparing for the Aug. 29 Restaurant Workers Strike and Beyond

Non-union restaurant workers are being urged to strike nationally on Aug. 29 by unions and others hoping to raise industry wages and promote union representation. Although the Aug. 29 strike is primarily focused on quick service restaurant workers (as has been the case with several other recent strikes in various markets around the country), employers in all dining segments are susceptible to such activity and should familiarize themselves with their rights and those of their employees. Given current economic and political trends, one can expect continuing pressure from unions for workers across the dining spectrum to unionize. Restaurants have significant rights in responding to such activity, but many are unfamiliar with the complexities of labor law and how to manage business during a strike. This advisory provides a general overview of rights and limitations on employees’ rights to strike, employers’ rights in case of strikes and potential strikes, and practical tips on what to do in the event of a strike.

Employees’ right to strike
Restaurant employers must understand that the National Labor Relations Act (“NLRA”) guarantees employees the right to organize unions and to strike, regardless of whether the employees are represented by unions. Workers who strike are engaging in legally protected activity. Employers are not powerless, but if a strike stays within legal bounds, an employer cannot terminate or discipline employees who strike, or otherwise retaliate against them. In fact, an employer cannot take any adverse action against an employee because of a strike.

Because the right to strike is protected, an employer may not interrogate employees about plans to strike or threaten employees with adverse consequences for striking. Moreover, employees need not give advance notice of their intent to strike; they can simply walk out at the appointed time.

Important limits on the right to strike
There are limits on employees’ right to strike:

Employees cannot conduct a “sit-in,” strike inside the restaurant, or otherwise deprive the restaurant of use of its premises. When they strike, employees must leave the restaurant and go to public property for any picketing or demonstrations.
Employees cannot block the entrances and/or exits to the employer’s restaurant or parking lot. They are permitted to pass in front of the driveways as they picket, but they cannot stand or sit and block guests, other employees, or deliveries from entering or exiting.
Striking employees are not permitted to physically assault, or threaten to assault, the employer, its agents or guests. However, other than direct threats of violence, there are very few restrictions on what strikers may say to the employer or its guests.
Employees cannot engage in “intermittent strikes.” This is when they strike for a while, come back to work for a period of time, and then strike again.
Employees who violate these rules may lose the protection of the NLRA and subject themselves to discipline or termination.

Supervisors and managers have no right to strike with employees
Supervisors and managers are not covered by the NLRA and have no right to strike in support of employees. Thus, restaurant employers can insist that they do not strike and that they continue to perform their job duties and whatever additional job duties need to be accomplished during a strike. Employers can discipline and take action against supervisors and managers who refuse to work in support of striking employees.

To be a supervisor, the person must have the authority to hire, fire, discipline or assign work to employees, or to effectively recommend such actions. Simply calling someone a “supervisor” does not make them one under federal labor law. Lead employees (i.e., “shift leaders”) who have no disciplinary authority, no ability to hire or fire, and who merely make sure that a shift runs smoothly in accordance with restaurant policies are not supervisors or managers. Restaurant employers are advised to consult with labor counsel for advice on whether a specific person or position is a supervisor.

Talking with employees before a strike
Employees often strike because they are misinformed or have unrealistic expectations about wages or working conditions. Generally, communication between an employer and its employees is the best way to avoid misunderstandings that lead to strikes. Employers should talk to employees about the industry, the purposes of unions getting involved in the campaign, and about how a strike cannot force an employer to do anything. Make sure employees know the employer’s rights, and not just their own rights.

Employers are permitted to (and are encouraged to) provide factual information about employment in the restaurant industry, about unions, or about any other subject. Employers are also permitted to give their own opinions about the strike, about minimum wage issues, and about unions.

Employers should not deal with strike leaders or others in a “representative” capacity, which is where a single or small group of employees comes to the employer representing other employees, which may be a step toward creating a union. Employers may speak with employees on an individual basis, but cannot offer more money or other benefits in exchange for a promise not to strike, as individual employees cannot agree to waive their right to strike. Finally, any group meetings should focus on improving communications and understanding, and should not involve bargaining about working conditions.

Employers have rights too
Even though an employee’s right to strike is protected, the law also protects an employer’s ability to operate its business during a strike:

Employees who go on strike need not be paid for the time they do not work.
Employers have no obligation to adjust employee schedules to help them strike or to make up for hours they missed. (Nor can they retaliate with a lesser schedule once the strike is over.)
Employers do not have to agree to any demands made by strikers. In fact, unless a union has been certified as the employee representative, the employer is not required to even discuss the demands of strikers, and should not do so.
Employers may temporarily replace strikers. Employers can call in extra help (other current employees, supervisors and managers, or new hires) to cover shifts during strikes.
Under certain circumstances, an employer can permanently replace striking employees. If an employer hires someone new to replace a striker, the employer need not fire the replacement employee when the striker is ready to come back to work. A replacement employee instead goes on a preferential hire list for when an opening occurs. Note: This is a very complicated area of the law. Restaurant employers should discuss this option with labor counsel before taking action to permanently replace any employee.
Employers may choose to close the restaurant for the entire day of the strike.

Practical recommendations for restaurant employers with striking workers
On the day of a strike:

If the restaurant will be open, make sure supervisors and managers are present and ready to operate the restaurant to ensure smooth operations, to the extent possible.
If you hire new employees to work the day of the strike, have them arrive at the restaurant before the strike starts.
Be professional and courteous to employees who strike. Most, if not all of them, will come back to work in the restaurant and it is important that they be treated with respect so that they will treat guests with respect.
Make sure striking employees have clocked out.
If strikers or demonstrators attempt to come onto restaurant property or block entrances, use your judgment about whether it is safer just to wait it out or call the police to escort them out. If any property damage or violence occurs, have security or the police engage immediately.
When striking employees return to work, make sure their return is not contingent on new or different terms or conditions of work, like better shifts or pay.
Employers are not required to meet with any of the strikers to discuss demands or bargain for new employment terms, and should not do so.
Employers should not photograph the strikers unless it is necessary to collect evidence of a legal violation.

For restaurants whose employees strike on Aug. 29, one option is to recognize this activity as street theater, recognize that the restaurant is not being singled out, and accept that the day will be abnormal, but will quickly be over.

When is the strike over?
An employee’s strike is over when he or she makes an unconditional offer to return to work at the end of the day of the strike or when he or she shows up for his or her next scheduled shift. An employer need not put striking employees back to work until they make such an unconditional offer. An employee who says: “I’m ready to come back to work if you raise my pay” or “I’m ready to come back to work if I get a better shift” is not ending the strike because the offer has conditions.

More on unions and the current movement
Unions are funding and leading the activist organizations behind this supposed community activity against restaurant employers. The earliest quick-service worker activity was aimed at raising the minimum wage to $15.00 per hour. That simple message is now being diluted—and co-opted—by unions also seeking “the right to form a union without retaliation.”

The unions’ additional message is a red herring. Whatever one thinks of the need to raise the minimum wage, the “right to form a union without retaliation” already exists. The NLRA has protected that right since 1935. Just this month, the Senate confirmed President Obama’s appointees to the National Labor Relations Board, and there is no doubt that the NLRB will now aggressively protect the rights of employees to choose to be represented. The unions’ new message is designed solely to have restaurant employees consider unionizing.

Restaurants whose employees appear interested in forming a union should immediately contact experienced labor counsel to develop a lawful plan to discuss options and determine strategy.

Upcoming related events and resources.
DWT will host the 2014 West Coast Restaurant Employment Law Boot Camp in February 2014. Please contact Riley Lagesen if you are interested in attending. More details to follow shortly.

For other restaurant industry-related resources, please visit DWT’s “Game Time at Restaurant High” webpage.