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Day Without a Woman - Can You Be Fired For Striking?

Posted by Giovanna A. D'Orazio | Feb 28, 2017 | 0 Comments

Organizers of the Women's March have designated March 8 (International Women's Day) as “A Day Without a Woman”.  They are calling for a general strike, meaning women would not attend work, school, shop or perform domestic duties, among other things.  More on that here.

While there are certainly past successes that have been attributed to large scale strikes (for example, a large women's strike in Iceland led to that country being known for its equality in the workplace), there are risks for participants.  After the Day Without Immigrants a couple of weeks ago, it was reported that potentially hundreds of immigrants had lost their jobs after not coming to work.  Many employers relied on employees violating no call/no show policies as the reason for their termination.

Every situation is different and it is impossible to know ahead of time whether a woman who is fired for participating in a march or strike would have any type of legal recourse.  New York, as are most states, is an at will employment state.  Meaning that, unless you have an employment agreement that says otherwise, you can be fired at any time for any reason as long as the reason is not discriminatory or in violation of some other workplace statute.

There is no First Amendment protection in the private workplace so generalized freedom of assembly or expression or political activity is not protected.  While there is some First Amendment protection in the public sector, it is limited.  The National Labor Relations Act protects some types of work related speech and concerted activity, including strikes, but a generalized strike addressing various out of the workplace issues may not count.  You can read some guidance from the NLRB about striking here

Employers are also typically entitled to enforce attendance policies and fire employees who do not follow call in procedures and do not show up for work.  When can they get themselves in trouble?  When the policies are not enforced equally.  So, maybe, if your employer allowed a bunch of guys to miss work without repercussions, but not a woman, an argument could be made that gender discrimination is at play.

Other than just being at the mercy of the at will employment laws, what are other ways employees can get in trouble? As we mentioned above, violating attendance policies and call in procedures is one way.  Not being truthful and getting caught – especially in the age of social media – is another.  For example, did you call in sick and now there's a photo of you on Facebook doing something sick people can't do? 

For the most part, if you do not work for yourself, these situations will require your discretion in light of your knowledge of your particular workplace.  No one should violate a workplace policy without making a reasoned decision as to whether he or she is willing and able to accept the consequences of a possible termination.  There is never a guarantee, no matter how sympathetic or newsworthy the situation, that an employment lawsuit will be successful.

If you believe you have been terminated for illegal reasons, contact us to schedule a consultation, or for a quick confidential case review complete our employment questionnaire.

*This post is not legal advice and does not create an attorney-client relationship with the reader.  Representation only occurs after a detailed investigation of your particular matter and entry into a formal retainer agreement.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna also has experience litigating Article 78 proceedings in New York State court.

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