By Robert G. Brody and Fintan S. Lalor
In recent months, numerous online-driven campaigns have urged employees to stage walk-outs. Whether motivated by political concerns, in response to corporations rolling back their DEI initiatives, or for a multitude of other reasons, 2025 has already seen multiple employee walk-outs.
Frustrating as it may be, if an employee walks off the job, or fails to report to work in support of a union or other strike, he/she CANNOT be fired or disciplined. There are, however, legal strategies to address and control such disruptions. This article outlines these strategies and highlights common missteps management should avoid in the event of a walk-out.
Prior to the Event
If you catch wind of the walk-out ahead of time, employers may consider the following strategies:
• Staff up: Ask a few employees if they are willing to be on-call to pitch in if the business is short-handed. If you believe some of your employees will not report for work, you may want to schedule one or two extra employees in advance.
• Talk to Your Employees About Unions or Whatever Issue is Being Protested: It is your right to talk to your employees about such topics in advance. HOWEVER, if your state prohibits captive audience speeches, your right to hold such meetings may be limited. Seek counsel in advance so you know your rights. These conversations may seem awkward at first, but with practice and training they become second nature and very powerful. Key points to raise include:
o Walk-outs are unfair to our customers. Service could be hurt if the company is understaffed, or a protest could even cause the business to shut down for a short period of time.
o An unexpected walk-out by employees is unfair to their fellow employees. Those who decide to work may have to work harder to make up for those who choose to walk-out. Worse yet, if the business is forced to close, employees scheduled to work may not be allowed to, which will cost these innocent people a day’s wages.
o Our customers could tire of all these hassles and go to the competition instead, resulting in less work for our employees in the future.
o And of course, strikers do not get paid!
• Contact Law Enforcement: If you think you will be the subject of protests, alert the police in advance and let them know the details. But remember, asking for police intervention in the face of lawful activity is not permitted (e.g., organizer quietly eating in your restaurant or lawfully picketing outside). If you don’t currently have a relationship with the police, now is the time to start to cultivate one.
On the Day of the Event
When the walk-out occurs:
• Do Not Threaten to Discipline Striking Employees: If an employee walks off the job or fails to report to work in support of a strike, he/she CANNOT be fired or disciplined.
• No Need to Pay Strikers: The employee need not and should not be paid for time not worked. If you have a salaried exempt employee whose salary you want to reduce for this reason, please seek legal counsel before taking action.
• Returning Strikers to Work: If you have replaced a striking employee or no longer need the employee on that one shift, you need not return him/her to work until the next scheduled shift.
• Thank all the employees who remained at work and recognize their extra effort if it occurred.
• If the protest involves a cause you support, say so and explain why you think shutting down your business is the right way to protest.
• Be Calm and Confident: No matter what happens on the day of the event, be calm and confident. You need to stand tall, run the business, and keep your employees and customers safe. Employees need to see that you are not intimidated by the protest and that you can handle it.
After the Event
• If employees do not show up to work and you are unsure of the reason, you can ask employees why they were absent, assuming this is what you would normally do. If they say they were out for any reason other than a strike/protest, they can be disciplined using your normal discipline procedures. If they say they were sick, follow your normal sick leave policy.
• If you have activity and striking employees, you might decide not to discipline ANY employees, regardless of the reason they were absent, out of an abundance of caution.
Remember, your employees and customers are counting on you. Take a stand and be confident. Good luck.
Brody and Associates regularly advises its clients on all labor management issues, including collective bargaining strategies, and provides union-free training and counsel. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
