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Author: Mark Goodwin, LeClairRyan
- In a dispute between a union and/or employees and their employer, the ultimate economic weapons either side may use respectively to achieve its goals are a strike by the union/employees and a lockout by the employer.
- Picketing and strikes by unions and employees are generally permitted under the National Labor Relations Act (NLRA) to seek union recognition by an employer during organizing activity, to achieve economic gains (wages, benefits, and/or improved working conditions), and to protest unfair labor practices by the employer. See Strikes and Picketing.
- There are different types of lawful strikes that unions may engage in order to place pressure on an employer, including economic strikes and unfair labor strikes. See Strikes and Picketing.
- Intermittent strikes, partial strikes, work to rule, and sit down strikes are generally unlawful, and employees may be fired for engaging in such strikes. Picketing of neutral employers is known as a secondary boycott and is unlawful under the NLRA. See Intermittent Strikes, Work to Rule/Slowdown and Sit Down Strikes.
- During a strike, an employer has certain rights with respect to payment of wages and benefits to striking employees and staffing to maintain business operations. See Employer's Rights During a Strike.
- It is critical for an employer to prove that replacements were permanent if strikers return to work from an economic strike. It is equally important for an employer not to promise "permanent" replacements that they may not be fired for misconduct or for any other reason. See Replacement of Striking Employees.
- There are circumstances in which an employer may refuse to reinstate strikers, including a striker's serious misconduct and use of violence against non-striking employees. See Circumstances Under Which an Employer May Refuse to Reinstate Strikers.
- Employers may lawfully lockout employees in certain situations as a pressure tactic during bargaining or when strikers seek to return to work from a strike. When a lockout is inherently destructive of protected employee rights, however, it is illegal. See Lockouts by Employers.
- In some situations, employers may lawfully hire temporary replacements of employees who have been locked out by the employer. See Hiring of Temporary Replacements to Continue Operations.
The following states have additional requirements for this topic under applicable state law.