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February 16, 2017

Know Your Rights: “Day without Immigrants” Walkout Activities Begin TODAY

Immigrant rights groups have leveraged social media to organize employee walkouts and protests across the country today, Thursday, February 16. The planned “Day without Immigrants” is intended to protest the Trump administration’s executive orders with respect to immigration and underscore the importance of migrants to the country’s economy and social structure. It is unclear to what extent agricultural workers intend to participate.

The Agricultural Labor Relations Act (ALRA) and the National Labor Relations Act (NLRA) protects farmworkers and all other workers (whether unionized or not), respectively, who engage in lawful concerted activity for purposes of mutual aid and protection. Generally, when an employee acts on behalf of others, or if a group of employees raise work-related issues to management, such action is deemed to be protected concerted activity. However, employees who protest government action without raising workplace concerns are generally not afforded such protection under either statute.

Based on precedent, the Agricultural Labor Relations Board (ALRB) and National Labor Relations Board (NLRB) would likely take the position that workers who walk off the job or fail to show up for work may be protected under the ALRA or NLRA. Employers are advised NOT to discipline employees who choose to participate in the boycott.

It is generally not necessary to pay employees for time missed for participating in the boycott. Moreover, under California and federal law (Fair Labor Standards Act), an employer can deduct the full-day salary of an overtime exempt employee for absences for vacation, sickness or personal reasons, when no leave is available without affecting the employee’s exempt salaried status.

Since the purpose of being absent in this case is due to participating in political activities, it is also not necessary to pay California-based employees for paid sick time. Employees may use paid sick days for diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or employee’s qualified family member. (Employees may also use leave for specified purposes if the employee is a victim of domestic violence, sexual assault, or stalking.) Of course, if employees request paid sick leave for being absent on this day, the employer must inquire as to the reason for the leave, and pay for paid sick time if the employee is eligible and gives a valid reason under Labor Code section 246. Also, if the employee has available vacation time, then he or she could use vacation time if doing so is consistent with the company’s vacation policy.

If your employees walkout or don’t show up to work as part of the “Day without Immigrants” protests, we want to hear from you. Contact Cory Lunde at (949) 885-2264 to let us know about any activities related to these events.

For more information on legal matters, contact Jason Resnick at (949) 885-2253.