When Employees Walk Off the Job, Can They Walk Back On?

Minnesota Orchestra principal trumpeter Manny Laureano made headlines recently when he walked off the stage during a performance by guest artist Rufus Wainwright, whom Laureano felt had gone too far with political comments on stage.

As a rule, private sector employees do not have the right to simply leave their workplace anytime they feel that the environment is not to their liking. There is an old saying in the labor arbitration arena that employees must “obey, and then grieve.”  This means that employees are not permitted to stop what they are doing and hold up production just because they may have a bone to pick with the employer.  Instead, they must do what is asked of them and then take up the matter later in an appropriate setting.  It is a little like a football team that continues playing the game “under protest” after what they feel is an objectionable ruling by the referee.

From the news reports, Laureano seems to accept that consequences are heading his way, and the Orchestra appears to have responded in a way that reflects respect for the sincerity of Laureano’s motivations.

Are there situations where employees are protected against discipline for walking off the job?   In the private sector, the answer is no, unless the departure constitutes concerted protected activity, is a right granted by a contract or collective bargaining agreement, or is protected under some state or federal law.  In the public sector, free speech issues might also add a layer of protection.

Here are the most significant areas of protection:

Job Safety

The federal Occupational Safety and Health Administration (OSHA) has issued regulations permitting employees to refuse to work in a hazardous task if they meet all of the following four tests:

  • Where possible, the employee has asked the employer to eliminate the danger, and the employer failed to do so;
  • The refusal to work was in good faith
  • A reasonable person would agree that there is a real danger of death or serious injury; and
  • There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

It is important to note that while the employee is held only to the subjective standard of “good faith,” the employer is protected against whimsical or overly sensitive reactions to difficult work by the “reasonable person” standard in the third bullet point. In addition, the unsafe condition must be severe enough to pose a risk of “death or serious injury.”

The National Labor Relations Act also protects employees refusing to perform hazardous work in certain circumstances. In this case, the work need not be a threat of death or serious injury, as in the case under the OSHA example. The employee just has to have a reasonable good faith belief that the work is abnormally hazardous.  However, the refusal must take place as a “concerted” activity – i.e., involving or undertaken in the interest of two or more employees since that is the bedrock of NLRA coverage.

Depending on the circumstances, a single employee’s unilateral action may be deemed by the NLRB to be “concerted,” where it grows out of group activity, is intended to initiate group activity, is an attempt to enforce a contractual right, or where it seeks to protect a group interest.   However, whether a Board decision finding unilateral activity to be “concerted” activity protected by the NLRA will be enforced by a federal court is uncertain.  In addition, the refusal must not be in violation of a valid “No Strike” clause in a collective bargaining agreement.

Public Policy

Minnesota law has for many years protected employees who refuse to perform assigned tasks that they believe are in violation of public policy. This concept first arose in a case where the Minnesota Supreme Court affirmed protection for a gas station attendant (remember those?) who refused to pump leaded fuel into a car calling for unleaded gas only.  Minnesota lawmakers subsequently codified this protection for anyone who

refuses an employer’s order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason.

Similar to the OSHA protections, an employee is not protected merely for a good faith belief but rather, there must be some objective basis for that belief, e.g. having read that the directive was illegal or having been advised of such by a knowledgeable person. In addition, the claim cannot be an afterthought; it must be asserted at the time that the directive is refused.

Concerted Activity

Even in the absence of a safety hazard, the NLRA protects two or more employees who engage in a work stoppage for reasons relating to wages, benefits, working conditions, or for other mutual aid and protection.  In such cases, however, barring the presence of employer unfair labor practices, the employer is permitted to treat such stoppage as a strike and may bring in replacements for the striking workers.  If those replacements are hired on a permanent basis, the striking employees retain recall rights but the employer is not obligated to release the replacements or immediately return them to work.  Thus, the “protection” afforded by the NLRA can be rather hollow in many cases.

BOTTOM LINE

In the absence of a contractual right to refuse to perform, employees who walk off their jobs in protest have very little job protection and may find the door locked when they seek to return.