Can Thursday’s Strikers Be Replaced?

By Barbara Cotter, Attorney at Law

In an effort to publicize demands for wage increases in entry level positions, an organization calling itself “Low Pay is Not Okay” has advised fast food workers across the country to go on strike on August 29. Low Pay is Not Okay offers resources to those considering the strike, including a sample letter to management informing it of the one-day strike to demand wages of $15 an hour and the right to join a union. The sample letter further states that management is prohibited from firing or retaliating against the striking workers.

Unfortunately, any worker relying on Low Pay is Not Okay’s letter for job security has been misled.   Management does indeed have a number of options when confronting a strike for economic conditions and one of those options includes replacing the striking workers.    Under federal law,  an employer may hire permanent replacements in order to continue operations during a strike.   When that occurs, the striking worker is not necessarily entitled to reinstatement upon his or her return. Rather, the returning worker must await the availability of a job vacancy before he will be reinstated. The general policy underlying this rule is that although employees have the right to strike to improve working conditions, an employer has the right to continue with its operations during an economic strike to avoid financial calamity.

Should fast food franchisees begin calling applicants to fill positions abandoned by those following the Low Pay is Not Okay’s call to strike? Perhaps. But given that the August 29 amounts to more of a publicity stunt than a true strike, most franchisees would probably benefit from a more savvy approach. When and if employees strike, and when and if the press or customers ask about the franchisee’s response, the franchisee can and should seize the opportunity to publicize a message that will not only serve the interests of the franchise, but the interests of any low wage workers. The franchise owner who tells the public that his or her restaurant appreciates vigorous debate about working conditions, particularly with the imminent changes under the new health care law, and the interest in economical and healthy food choices, may fare better than the owner who announces on local or national television that the striking crew should plan on staying home for a while.

Ultimately, the one-day strike is a management challenge, particularly given complex federal laws governing the rights and obligations of parties involved in a strike. So, employers should plan ahead, be alert for free publicity, and avoid accepting legal advice from Low Pay is Not Okay.


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