Why Walmart Won't Fire Striking Workers
So why haven't they all been fired? You may not realize it, but even non-union American workers have the right to strike and take other actions to protest and try to improve working conditions, and they can't be fired in retaliation.
Ready to walk out of your job? Hold on. Before you run out the door, here's what you need to know about your right to protest your own working conditions:
Supervisors can't protest: If you're a supervisor, you're out of luck. The law that protects workers who protest working conditions, the National Labor Relations Act, doesn't apply to you.
There is safety in numbers: If you're protesting your own working conditions, you aren't protected against retaliation. However, if you are objecting to something that affects at least one co-worker, or with at least one co-worker, then you may be legally protected.
You are guaranteed an equivalent job if management fills the position while you're striking: If you walk out (along with co-workers) to seek higher wages, shorter hours, or better working conditions, then you are an "economic striker." That means you are legally protected from being fired, but not from being permanently replaced. You continue to be an employee, and your employer can't fire you for protesting. However, if they hired replacement workers permanently (as opposed to bringing in temps) to keep their business open, they don't have to fire the permanent workers. Once you notify the employer you are ready to go back unconditionally, they need to put you in a substantially equivalent job or recall you for any such job when a position becomes available. If your protest over working conditions is a walkout over unusually dangerous conditions (e.g., radiation exposure, violence, or toxic substances), then you aren't on an economic strike and aren't subject to replacement.
"Unfair labor practice strikers" can't be replaced: If your strike is to protest unfair labor practices by your employer, such as retaliating against workers who discuss or protest working conditions, then you must be reinstated to your job when it's over and cannot be permanently replaced.
Picketing is legal: Picketing your employer to protest working conditions or unfair labor practices is protected, subject to certain limitations. You can't block entrances, bully or threaten people trying to enter.
You can wear clothing to protest working conditions as long as the clothing isn't disruptive: For instance, if your co-workers and you decide to wear orange shirts to indicate you feel like you're in prison, or even shirts that say, "Inmate," you can't be fired for that.
You can complain to co-workers about your grievances: You are allowed to discuss wages, benefits and other working conditions with co-workers. Many companies try to prohibit discussion of wages, even putting the prohibition in the handbook or in a contract. NLRB will likely sanction any employer found to do this.
Complaining on social media, though, is permitted but it's tricky: You can post on Facebook that you think your boss is being unfair (or even call him a "scumbag"
, as long as you have co-workers who are Facebook friends and your post invites discussion over working conditions. You can't just mock the company unrelated to working conditions and get away with it, so be careful what you post.
Filing a formal complaint to the government will protect you: If you and at least one other co-worker file an OSHA complaint about unsafe conditions, contact the Department of Labor about unpaid overtime, or seek help from the EEOC on a discrimination issue, your actions are protected under the National Labor Relations Act as concerted activity. If you do it alone, each government agency has its own whistleblower laws that might protect you from retaliation.
In general, there's no free speech protection at work, so be careful if you're protesting working conditions. If you think your employer has broken the law by retaliating against you for discussing or protesting working conditions, you can file a Charge Against Employer with the NLRB, or check with an employment lawyer in your state.
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