By Catherine L. Moreton, J.D.
Legal Editor

Over the last week, employers across the country were faced with employees who did not come to work because they were participating in demonstrations related to immigration reform that were held in cities across the country. Many of these workers were Hispanic, Asian or members of other protected groups. The question for a lot of employers was how to handle what, in many cases, were unexcused absences. In addition, employers want to know how to plan for future demonstrations that are anticipated in May.

One manufacturing company in Chicago, Illinois fired approximately 30 workers who skipped work to attend one of the demonstrations held on March 10, 2006. After the demonstration, the terminated employees filed discrimination complaints with the federal Equal Employment Opportunity Commission (EEOC) and retaliation complaints with the National Labor Relations Board (NLRB). The employees claim that when management found out some 50 of them planned to attend the rally, the managers approached the employees individually and threatened them with termination. The terminated employees also marched on the company in protest of the firings. In the wake of the charges and the protest, the company rehired these employees. However, in other cases, employees were terminated for skipping work to attend similar protests and have not yet been rehired.

Neither the EEOC nor the NLRB indicated how they would respond to charges filed in circumstances like those in Illinois . The 50 or so employees at the worksite who planned to attend the rally together may well have been engaging in protected activity under the National Labor Relations Act (NLRA) and the employer's tactic of approaching the employees and threatening them with termination might have been found to be an unfair labor practice. Moreover, if the employees were treated differently than employees of a different race or nationality have been treated in the past when out of work for an unexcused absence, they might have been successful in establishing illegal discrimination.

However, there are steps employers can take to avoid claims of discrimination and retaliation, as well as charges of unfair labor practices.

First, employers should review their policies on attendance, and personal/vacation time. So long as the employer treats all employees the same under these policies regardless of the reason for the requested leave, then it will have a good defense to a claim of discrimination. For instance, if a company has a policy that permits employees to use personal or vacation time when it is requested in advance (say 48 hours), then employees who properly request time should be granted leave. If the company finds that it can't permit all employees who request time off to be out of work because it will hinder operations, it may want to consider a policy for determining which requests to grant, e.g., granting leave in order of when the requests are received. If the employer has a large number of employees who will want to attend demonstrations it might be a good idea to distribute the policy and remind all employees of the procedures for requesting time off.

Second, employers should consider how they will treat employees who call in sick on the day of a demonstration or fail to show up for work without notifying the employer. Again, it is important for companies to have an established policy that applies to all employees. The policy should set out when sick days may be used (e.g., when the employee is ill, to care for a sick child) and any procedure for calling in when the employee will not be at work as scheduled.

Employees who do not show up for work and fail to call in should be treated the same under the company policy regardless of the reason for the no call/no show. Employers should not single out employees who plan on attending demonstrations for treatment that is different than the way employees are treated who fail to come to work for other reasons. Disparate treatment may well give rise to claims of discrimination and unfair labor practices. Those protesting immigration laws should not be singled out for different treatment.

Third, employers should be careful about approaching groups of employees who are planning to attend demonstrations. Provided discussions on the topic are not disrupting the work place, the employer should not try to coerce or convince employees not to attend demonstrations. It is possible that discussions between groups of employees on these issues could be viewed as concerted activity protected by the NLRA. Interference by the employer might well give rise to an unfair labor practice charge.

Tip: The key for employers is to establish written policies for vacation, personal, and sick time including policies explaining the procedure an employee must follow to request time off. Moreover, employers should have a written policy explaining what is expected with regard to calling out from work without prior notice. The latter policy should let employees know that failure to come to work or to call out as required by the policy will result in discipline up to and including the termination of employment. Finally, employers must enforce these policies in a fair and consistent manner in all circumstances including those where employees are out of work to attend a demonstration.