Hunton Employment & Labor Perspectives

When is “A Day Without A Woman”? 

Tomorrow, March 8, 2017.

What is the goal of “A Day Without A Woman”?

According to organizers, “[t]he goal is to highlight the economic power and significance that women have in the US and global economies, while calling attention to the economic injustices women and gender nonconforming people continue to face.”

Organizers are looking to end workplace discrimination and urge employers to adopt benefits such as paid family leave, sick days, adequate healthcare, fair pay, vacation time, and healthy work environments.

What is being asked of women? 

Women are being asked to participate in three ways:

1. Take the day off from both paid and unpaid labor.
2. Avoid shopping, except for small, women- and minority-owned businesses.
3. Wear red in solidarity.

Are women being asked to “No Call/No Show”?

 No.  Organizers have provided participants with a template letter to inform their employer of their participation.  A template out of office message has also been provided.

 Are males being asked to participate?

Yes.  Males are being asked to “use the day to call out decision-makers at the workplace and in the government to extend equal pay and adequate paid family leave for women.”  Men are being actively encouraged to discuss equal pay, paid family leave, and other women’s rights issues in the workplace.

Are businesses being asked to participate?

Yes.  Businesses are being asked to close or give female workers the day off.  Moreover, organizers are requesting that companies conduct an audit of “policies impacting women and their families.”

Can we discipline employees for taking unexcused absences on March 8 or violating uniform requirements?

This is a tricky question that should be determined on a case-by-case basis in conjunction with company policy.

Under the National Labor Relations Act, employees have the right to engage in concerted activity for their “mutual aid and protection.”

Would an absent worker participating in A Day Without Women be seen as engaging in protected, concerted activity?  Perhaps, but it depends on the specific facts of each case.  One important factor would be the motivation for the absence—i.e., whether it is based on the employee’s working conditions or general political advocacy.

On the political advocacy front, there is some guidance from the NLRB.  In 2008, the NLRB’s General Counsel issued a “Guideline Memorandum Concerning Unfair Labor Practice Charges Involving Political Advocacy.”  In that Memorandum, the General Counsel derived the following principles from the Board’s previous cases:

1. Non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern, that takes place during the employees' own time and in nonwork areas, is protected;
2. On-duty political advocacy for or against a specific issue related to a specifically identified employment concern is subject to restrictions imposed by lawful and neutrally applied work rules; and
3. Leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern may also be subject to restrictions imposed by lawful and neutrally-applied work rules.

The general takeaway is that employers have the right to enforce “lawful and neutrally applied work rules.” However, it is very important to note that the 2008 General Counsel Guideline Memorandum is not legally binding upon, and may not be followed by, the current Board General Counsel.

Looking forward, it is very possible these type of work stoppages and protests will continue.  That fact would militate in favor of an employer enforcing its lawful policies in line with the General Counsel Guideline Memorandum.  On the other hand, there is rarely a bright-line separating political advocacy and protesting working conditions, equal pay, etc.  As a result, there is no suitable blanket approach to dealing with these situations, but rather a case-by-case approach that takes into consideration both legal and non-legal factors.

Given the legal uncertainty on these issues, we recommend that you seek legal advice before disciplining employees for these type of activities.