Safety Strikes During the Coronavirus Pandemic

On March 30, 2020, Instacart and Amazon workers across the nation walked off the job to demand protection from COVID-19 transmission and higher pay to compensate them for the heightened risks they are facing during the pandemic response. This follows a “health and safety strike” over COVID-19 concerns by workers at a plant in New Zealand last week. As workers and unions take action on COVID-19 in their workplaces, it is worth remembering that the jobs of workers who engage in safety strikes and similar workplace actions may be protected by federal labor law. These protections may also shield unions and union-represented employees that strike over abnormally dangerous conditions even if their collective-bargaining agreement contains a no-strike clause.

Section 502 of the Labor Management Relations Act, 29 U.S.C. Section 143, provides that employees choosing to withhold their labor will not be deemed to be engaging in an unlawful strike if the reason for the refusal to work is a good faith belief of the existence of “abnormally dangerous conditions.” This statutory exemption has been interpreted as protecting both unionized and non-unionized workers. For a work stoppage to be protected under Section 502, it must be shown that: (1) the employees believed in good faith that their working conditions were abnormally dangerous; (2) their belief was a contributing cause of the work stoppage; (3) the employees’ belief is supported by ascertainable, objective evidence; and (4) the perceived danger posed an immediate threat of harm to employee health or safety. TNS, Inc., 329 NLRB 601 (1999), vacated on other grounds, 296 F.3d 384 (6th Cir. 2002). Workers who participate in a protected safety strike are entitled to reinstatement when they unconditionally offer to return to work. Workers who are disciplined or discharged for discussing or advocating for such a work action may be protected under Section 8(a)(1) and Section 7 of the National Labor Relations Act.

It is an open question whether the courts and the NLRB will view the potential for COVID-19 transmission in the workplace as an “abnormally dangerous condition” that triggers Section 502 protections, particularly if the employer follows the guidelines issued by the Centers for Disease Control (CDC) and state and local health agencies. Also, workers who are independent contractors, rather than employees, are not covered by these federal protections, although an employer’s determination that a worker is an independent contractor is not the final word on the subject—courts and regulatory agencies can make their own determinations on a case-by-case basis.

Workers who are not reinstated after participating in a safety-related work stoppage can seek reinstatement and backpay by filing a charge with the National Labor Relations Board through their local Regional Office. Workers are not required to have legal representation to file a charge with the NLRB, but it may help to consult with a labor attorney. Unions considering taking a work action in response to health and safety concerns over COVID-19 should consult with a labor attorney.

People

Related Practices