About twenty thousand employees of the California-based technology company Google walked off the job, from offices in Mountain View, New York City, Dublin, London, Singapore, Tokyo, Zurich, and other cities, on November 1, 2018. The multinational protest arose from a news report on the company’s handling of sexual harassment claims against a former executive. The walkout’s organizers presented a list of demands to the company’s management, including changes to sexual harassment reporting and investigation procedures. About a week later, the company announced that it was granting one of the demands by ending forced arbitration of sexual harassment claims. For employment attorneys in California, this event raises questions on both the employer’s and employees’ sides about the extent of legal protections for workers who walk off the job. While California employment law broadly favors employees, one federal statute provides the bedrock of protection for employees engaged in strikes and walkouts.
Congress enacted the National Labor Relations Act (NLRA) in 1935, in the midst of widespread disputes between employers and unions representing their employees. The statute protects the right of employees to organize for the purpose of collective bargaining, either by joining an existing labor union or forming one of their own. It also states that employees may “engage in other concerted activities” for “mutual aid or protection.” 29 U.S.C. § 157. Employers may not “interfere with, restrain, or coerce employees in the exercise of [these] rights,” but neither may unions “restrain or coerce employees.” Id. at §§ 158(a)(1), (b)(1). For employers, this means that they may not retaliate against an employee—such as through termination or demotion—for engaging in “concerted activities.”
The NLRA does not define the term “concerted activities,” leaving that job to the courts. Early cases before the U.S. Supreme Court resulted in some general exclusions. Actions that involve “force and violence in defiance of the law of the land” are not protected “concerted activities.” NLRB v. Fansteeel Corp., 306 U.S. 240, 258 (1939). Neither are actions that constitute a “repudiation by the employee of his [employment] agreement.” NLRB v. Sands Mfg. Co., 306 US 332, 344 (1939). The U.S. Supreme Court has defined “concerted activity” in a way that “embraces the activities of employees who have joined together in order to achieve common goals,” but which also includes individual action that is “intend[ed] to induce group activity.” NLRB v. City Disposal Systems, Inc., 465 US 822, 830-31 (1984).
California courts have generally held that an employee walkout “to present job related grievances to management” is “concerted activity” protected by the NLRA, regardless of whether participating workers belong to a union. Totten v. Kellogg Brown & Root, LLC, 152 F.Supp.3d 1243, 1255 (C.D. Cal. 2016), quoting Vic Tanny Int’l, Inc. v. NLRB, 622 F.2d 237, 241 (6th Cir. 1980). The complaint underlying the Google walkout—the investigation of sexual harassment claims—is rather central to employees’ working conditions. Had a dispute arisen, the walkout likely would have counted as “concerted activity” under the NLRA.
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