Another round of “Fight for $15” strikes is expected Tuesday at quick-service restaurants across the country, but employers should be cautious before taking action against any missing employees, especially in light of recent cases before the National Labor Relations Board, an attorney says.
Organizers of the Fight for $15 movement are calling Nov. 10 a “national day of action,” with employees outside the food industry, such as child care workers, expected to join quick-service workers in support of a $15 federal minimum wage.
One of a number of ongoing protests over the past three years, this week’s demonstration is timed to fall one year before the 2016 Presidential election to send a message to voters and candidates.
But with a growing number of restaurant chains facing complaints of unfair labor practices tied to the protests, one attorney warns employers to reinforce management training in light of shifting legal precedent, which has given union organizers tools that could be used to provoke employers into labor law violations.
Last week, the National Labor Relations Board ordered a Chipotle Mexican Grill restaurant in St. Louis to reinstate a worker who was fired in 2014 after participating in Fight for $15 strikes, upholding an earlier administrative law judge ruling. The chain was also ordered to compensate the terminated worker for back pay and benefits.
Chipotle contended in the case that the worker was fired for not attending mandatory meetings and for poor performance. But the NLRB agreed with earlier rulings that the worker was terminated for engaging in protected legal activity, and that Chipotle managers had threatened and interrogated other employees for discussing their pay.
McDonald’s USA also faces a number of complaints before the NLRB involving employees that have participated in Fight for $15 protests. Operators of the Freshii and Jimmy John’s brands have also faced charges of unfair labor practices related to union organizing.
Attorney Steve Bernstein, regional managing partner in Tampa, Fla., of labor and employment firm Fisher & Phillips, said restaurant managers should be trained in how to respond when employees jump the counter to participate in strikes or protests tied to the wage issue.
The key is to remain focused on the operational aspects of the worker departure and to avoid making any threats, he said.
Bernstein warned that social media is increasingly dangerous territory when it comes to what is seen as protected activity.
“You want to avoid becoming that Facebook moment where they’re caught on someone’s smartphone video engaged in a confrontation with a co-worker or others in a way that might paint the employer in a bad light,” he said.
While social media may seem to many to be “not the workplace” where certain activity is protected, Bernstein said, the NLRB may not see it that way.
“The social media world is the water cooler of the 21st century,” Bernstein said.
Last month, a U.S. Court of Appeals for the Second Circuit upheld an NLRB ruling last year that found the Triple Play Sports Bar and Grille in violation of labor laws after firing workers because of their Facebook activity.
The court found that co-workers who “liked” another worker’s disparaging comments about the employer on Facebook were engaging in protected activity.
Events like the protests scheduled for this week are a good time for employers to make sure their employee handbooks and other written policies and procedures are compliant, he added.
“What we’ll see on Tuesday, more than in the past, is the attempt to provoke managers,” Bernstein said. “The hope is to trap the unwary restaurant into being the next Chipotle.”