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Abstract

COVID-19 work stoppages involving employees refusing to work because they are fearful of contracting coronavirus provide a recent dramatic opportunity for newer workplace law observers to grasp a well-established legal rule: both unionized and non-union employees possess rights to engage in work stoppages under the National Labor Relations Act (“NLRA”). This article explains that employees engaging in concerted work stoppages, in good faith reaction to health and safety dangers, are prima facie protected from discharge. The article carefully distinguishes between NLRA § 7 and § 502 work stoppages. Crucially, and contrary to § 502 work stoppages, the health and safety-related work stoppages of non-union employees protected by NLRA § 7 are not subject to an “objective reasonableness” test.

Having analyzed the general legal protection of non-union work stoppages and noting that work stoppages had already been on the rise during the preceding two years, the article considers when legal protection may be withdrawn from work stoppages because employees repeatedly and unpredictably engage in them—so called “unprotected intermittent strikes.” Discussing a recent National Labor Relations Board (“NLRB”) decision that could be misinterpreted, the article argues for an updated and strengthened presumption of work stoppage protection for employees wholly unaffiliated with a union who engage in repeated work stoppages that are arguably “intermittent.” The law should presume that the work stoppages of unorganized employees are not part of an illegitimate plan to drive an employer “into a state of confusion.”

Next, the article grapples with looming work stoppage issues emerging from expansion of the Gig economy. When workers are not “employees,” peaceful work stoppages may increasingly become subject to federal court injunctions. The Norris-LaGuardia Act (the venerable 1932 federal anti-injunction law) does not by its terms apply to non-employees—possibly including putative non-employee Gig workers—raising the specter of a new era of “Government by Injunction.” Under existing antitrust law, non-employee workers may be viewed as “independent businesspeople” colluding through work stoppages to “fix prices.” The article argues that First Amendment avoidance principles should guide Sherman Act interpretation when “non-employee” worker activity does not resemble price fixing; that, consistent with liability principles articulated in the Supreme Court’s recent opinion in Sessions v. Dimaya, antitrust law’s severe penalties should not be applied to Gig workers given the ambiguities in federal and state law employee definitions.

Finally, the article considers the potential for individual non-union private arbitration agreements to curtail the NLRA rights of employees to engage in work stoppages in light of the Supreme Court’s labor law-diminishing opinion in Epic Systems.

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