Collective Action During the COVID-19 Pandemic

Essential Workers Have the Right to Protest Unsafe Conditions

In the midst of the pandemic, we rely on essential workers—healthcare professionals, sanitation workers, grocery store employees, long-haul truckers, transportation employees, warehouse and mail delivery workers, and more—to keep our society afloat.

But many of the workers deemed most essential to our survival feel that they aren’t getting enough protections in the workplace—and they have very legitimate concerns.

In recent weeks and months, employees at companies such as WalMart and Target, Amazon, Instacart, and hospitals across the country have planned and led walkouts, strikes, and other protests—demanding hazard pay, access to PPE, and other improvements to their working conditions.

However, employee walkouts during the coronavirus pandemic come up against the fact that society needs these employees to keep working. It’s still not clear how the extraordinary circumstances of the pandemic will affect court cases where essential workers’ rights to protest are challenged.

If you’re considering planning a walkout to protest unsafe conditions at your workplace, here are a few things you should know.

Your protections under the NLRA may vary

Under the National Labor Relations Act (NLRA), collective action to protest unsafe working conditions is considered protected activity. But just how protected varies depending on certain factors.

First, only non-supervisory employees are protected by the NLRA. Those considered “supervisors” under the NLRA aren’t subject to these protections.

Second, employees have the right to take collective action against their employer whether or not they’re part of a union. For union workers with a no-strike clause in their collective bargaining agreement, however, the picture changes.

Unionized employees operating under a no-strike clause are still protected from retaliation if they strike—but only if they can show through objective evidence that “abnormally dangerous” workplace conditions exist.

Employees without a no-strike clause don’t have that burden of proof.

You can speak out against your employer—within reason

In addition to staging walkouts, many employees who feel disempowered in a dangerous situation may express their grievances via social media.

When you take collective concerns over your employer’s hazard pay policies or unsafe working conditions to social media, your speech is generally protected. That’s true even if your statements are found to be insulting, abusive, or even false.

However, the NLRA won’t protect your speech if it’s found to be especially egregious—for instance, “disloyal, reckless, or maliciously false.”

Which speech falls under this category is decided on a case-by-case basis, but historically employees have been given broad latitude by the courts to speak out publicly against unsafe working conditions.

Got questions? Talk to an experienced employment lawyer

If you’re planning a walkout, sick-out, strike, or other collective action against your employer, you need an experienced employment lawyer on your side.

Your attorney can consult on what does and doesn’t constitute protected action, help you hold your employer accountable—and ensure your rights are protected.

Call us at 267-273-1054 or email us at murphy@phillyemploymentlawyer.com for a free, confidential consultation today.

The information provided here does not constitute legal advice. It is intended for general purposes only. If you have questions about a specific legal issue, you should speak to an attorney.