"Day Without An Immigrant" Revisited
Bryan Little, Farm Employers Labor Service
April 11, 2017
Recent media reports indicate that immigrant advocacy groups intend to stage another "Day Without an Immigrant" on May 1, 2017. This is the second iteration of a national protest of this kind in 2017. In February, immigrant advocacy groups encouraged workers not to work, children to not attend school, and businesses to close for the day in sympathy for their cause. While there was some impact in major urban centers and in some rural areas of California, FELS received no reports of massive absences of agricultural workers. This is not unexpected, however, since February is not a month for heavy employment of agricultural workers in California compared to later months of the year.
This iteration of a "Day Without an Immigrant" might have a significantly greater impact on California agricultural employers, coming as it does as the normal growing season when hiring begins to ramp up. After a wet Winter and late and wet Spring some early season activities have been delayed, and agricultural employers will undoubtedly be eager to hire workers and begin work -- just as this May 1 protest occurs.
When immigration activists staged a "Day Without An Immigrant" in 2008 in protest of then-pending Congressional immigration legislation, the General Counsel of the National Labor Relations Board indicated that participation is the "day" could be construed as a "protected concerted activity" under the National Labor Relations Act (NLRA); employer interference with employees' exercise of a protected concerted activity can result in an unfair labor practice charge being lodged against the employer. (Note: while agricultural workers are exempt from the NLRA, they are covered by its California counterpart, the Agricultural Labor Relations Act (ALRA); the Agricultural Labor Relations Board (ALRB) often follows the lead of the NLRB on policy matters, and might do so if faced with a question of whether participation in a "day" is a protected concerted activity.)
However, the NLRB General Counsel also noted such participation may not be a protected activity if there is no direct nexus to economic relationship between the employer and employee in question. A classic protected concerted activity would be consist of workers witholding their labor seeking better pay, benefits, or working conditions. In the case of participation in a "day," however, there appears to be no nexus between the economic interests of the workers and their employers; as a result, participation by employees in a "Day Without an Immigrant" may not be a protected concerted activity.
California is an "at-will" employment state (that is, and employer may terminate an employee's employment at any time with or without cause) it is illegal for an employer to terminate an employee for any of a long list of discriminatory or retaliatory reasons. This is why FELS recommends to subscribers and clients that it is always advisable to have a articulable, non-discriminatory reason that you can document and if neccessary explain to an enforcement official or a judge for terminating an employee, particuarly if that employee's tenure has been contentious. Termination of an employee who is absent from work to particiapte in "day" activities is not unlawful retaliation.
Should employers strictly apply their standing attendance policies (ideally, reduced to writing in a handbook or some other document provided to employees) if workers scheduled to work on May 1 choose to participate in "Day Without an Immigrant" activities? Since May 1 is still about two weeks away as of this writing, it might be advisable to remind employees of your attendance policies. Many employers have a policy that three unexcused absences from work triggers termination, and if this is the case employees should be reminded of this beforehand. Employees may have personal or vacation time availble to them, which they can be encouraged to use to avoid any conflict between scheduled work and an employee's desire to participate in a "day" activity. Or they can simply ask an unpaid day off.
From an employer's perspective, it may be wise to carefully consider whether it is neccessary or desireable to strictly enforce attendance policies on May 1. After all, FELS continues to receive reports that agricultural employers have continuous difficulty finding and retaining employees. Terminating employees who are absent on May 1 may not be in an employer's best interest, particularly given the litigious nature of employment in California. While an employee suing your for unlawful termination for missing work on May 1 may not seem to have solid legal ground to do so, litigation is always expensive and unpredictable (as in the appellate decisions that invalidated the long-held understanding that piece-rate earnings well beyond the minimum wage can also cover rest and recovery periods, and resulted in passage of Labor Code section 226.2 (AB 1513) in 2015.