April 28, 2006Client Alert

Managing Your Workforce During The Immigration Reform Protests Of 2006

Recent marches and other immigration reform events are sparking disputes and litigation between employees who leave or miss work to attend the marches and employers seeking to enforce attendance and other policies. Immigration reform groups are now attempting to organize a nationwide work stoppage on May 1, 2006.

What follows are brief answers to some frequently asked questions. However, there is no “one-size fits all” approach to the variety of issues associated with employee involvement in the immigration reform debate. Clients should review their existing policies, consult with legal counsel about their rights and responsibilities, and map out a common sense approach consistent with their workplace culture.

What should we say to our employees about immigration reform events?

You are free to let employees know your views on this political issue, pro or con. However, all communications should be carefully considered, professional, and free from any bias that could invite claims under state or federal discrimination laws. You should also monitor the workplace to ensure that there are no harassment/hostile workplace issues arising among workers on this issue.

Should we give employees time-off to participate in immigration reform events?

Some employers may find it necessary and appropriate to do so, others may not. Each employer should address this question in a manner consistent with its business needs and unique workplace culture. In most states, including Wisconsin, employees do not have a legally protected right to be given time-off to attend immigration reform and other similar events.

How should requests for time-off be handled?

In the same manner as other requests for time-off are handled. Unionized employers should follow their labor agreements, non-union employers should follow their employee handbooks or other policies.

In general, the fact that an employee wants to take time-off to participate in a demonstration should not be a factor in whether the time-off is granted. If an employee is eligible to take paid or unpaid time-off under company policy or practice (e.g., vacation, personal time, leave time) and can be spared, time-off should be granted. If permitted by your state law, you may require employees to use any paid leave (e.g. vacation or personal days) they have.

What should I do if the number of employees requesting time-off will shut down or interfere with our normal business operations?

Many employers have policies in place regarding the maximum number of employees that may be absent per day and per department and how conflicting requests will be prioritized. Requests for time-off to attend immigration reform events should be handled under those policies or any other non-discriminatory procedure you may adopt including a lottery system.

How should we handle tardiness, absenteeism, and employees leaving work early?

It is always best to handle such matters in accordance with your normal attendance and other policies (unionized employers should look at their labor agreements). In some cases, that will mean the incident is excused. In others, the incident will be treated as unexcused or result in the assessment of points or other discipline.

Do not take a position on the merits of the employee’s participation in immigration reform events when imposing discipline. The issue is whether a violation of company policy occurred, not whether the employee’s motivation was good or bad.

What if employees want to wear arm bands or other insignia to work?

Some employees may wear arm bands in support of the demonstration rather than be absent from work. Again, in general, you should take an approach that fits your particular workplace. You may allow employees to wear arm bands or prohibit such conduct for legitimate non-discriminatory reasons such as the enforcement of a dress code or the desire to avoid the potential for conflict in the workplace between employees who have differing political views.

What are the legal risks associated with disciplining employees?

There will be legal risks associated with any approach an employer takes on this issue. Whether you allow employees to miss work (or show other signs of support) for immigration reform events or decide to strictly enforce attendance and other policies, you are setting a precedent that will need to be considered in similar situations in the future. Some of the legal issues employers and their counsel are currently discussing include:

Several groups have filed unfair labor practice charges and/or labor contract grievances alleging that the discharge of workers who participate in immigration reform events violates Section 7 of the National Labor Relations Act (“NLRA”), which gives employees, union and non-union, the right to engage in “concerted” activity for the purpose of “mutual aid or protection.” While we do not believe that the Board will conclude that the NLRA protects employees who miss or leave work for the sole purpose of attending immigration reform events, employers should anticipate such claims and also be aware that related conduct may be protected.

Employees and immigration reform groups may question whether an employer’s enforcement of attendance and other policies violates state and federal prohibitions on national origin discrimination. Employers who, because of these marches, refuse to hire employees who do not have U.S. citizenship (but are legally in the U.S.) face additional risks under the Immigration Reform and Control Act, which prohibits discrimination based on citizenship status. Additionally, a potential claim of national origin discrimination could be brought under Title VII, or applicable state law.

Government employees enjoy additional protections resulting from their first amendment freedoms of association and speech.

Since a variety of other legal issues exist, consult with legal counsel to discuss the specific details of your individual workplace situation. Depending on the circumstances, state or federal law may require a different approach than the one you prefer.

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