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Can an employer fire a striking worker?

Federal law protects workers engaged in strikes in Minnesota are protected by federal law when they are engaging in certain legal activities. The federal National Labor Relations Board investigates and adjudicates violations of the National Labor Relations Act that protects these workers and enforces their rights in certain employment disputes.

The Act prohibits an unfair labor practice comprised of employers to interfering with, restraining or coercing employees who are participating in their rights to organize, engage in collective bargaining and taking part in similar concerted activities. Employers are also prohibited from using discrimination in hiring or keeping employees as a means of encouraging or discouraging membership in a labor organization.

The NLRB, to prove an unfair labor practice, must establish the worker's protected conduct was a substantial or motivating factor in the prohibited action undertaken by the employer. If this is established, however, the employer can defend itself by showing that it would have taken this action for a legitimate and nondiscriminatory reason unrelated to the worker's protected activity.

In a recent case handed down in August, the U.S. Eighth Circuit Court of Appeals reversed the NLRB and denied enforcement of an order reinstating a worker with backpay and other damages for being terminated while participating in a strike against his employer. The employer claimed that the worker threatened another employee with a violent gesture of drawing his hand across his throat.

The employer applied inconsistent policies on workplace violence and displayed hostility toward the union by, among other things, compelling workers to sign a pledge not to strike. The Court, however, ruled that the NLRB Counsel did not prove that this discriminatory animus toward the worker's protected union conduct was a substantial or motivating factor in the job termination.

These type of disputes often require prompt legal assistance to help assure that employers comply with federal and Minnesota laws. Businesses should seek legal advice when confronted with these cases and other business litigation and contract disputes.

Source: FindLaw, "Nichols Aluminum, LLC v. National Labor Relations Board, Nos. 14-3001, 14-3202 (8th Cir. Aug. 13, 2015)," Assessed Aug. 23, 2015

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