On May 31st, the National Labor Relations Board modified the right of the employer to permanently replace a striking employee. The focus of this modification was the intent of the employer in replacing the employee. If an employer’s intent is to punish the striking employees and avoid future strikes, the NLRB declared that this is now unlawful. Any evidence of an employer permanently replacing an employee on strike to avoid future strikes in now deemed unlawful and result in potential back pay liability.
What does this mean for your business?
If you are debating on replacing striking employees, make sure you document any reasoning for permanently replacing that employee. It is important to have documentation for this because it will be evidence that you are not replacing an employee just to “teach them a lesson.” Be careful when permanently replacing employees that are on strike, you should not simply be replacing them because they have gone on strike but rather other reasons related to the business operations and the hardship of not having the employee in their position.
