Strikes, Lockouts and Other "Economic Weapons": New York
Federal law and guidance on this subject should be reviewed together with this section.
Author: Jessica Sussman
- Private sector employees may strike. See Strikes.
- An employer's right to hire permanent or temporary replacements depends on whether the labor dispute is characterized as an economic or unfair labor practice strike. See Replacement of Striking Employees.
- Employees who are locked out by their employers are eligible for unemployment in New York. See Unemployment Benefits During a Lockout.
Private sector employees in New York have the right to strike under the National Labor Relations Act (NLRA).
Replacement of Striking Employee
The NLRA permits an employer to either temporarily or permanently replace employees on strike, depending on the nature of the strike. During an economic strike, employers may hire temporary or permanent replacements. However, during an unfair labor practices strike, employers cannot hire permanent replacement employees, but may hire temporary replacements.
Unemployment Benefits During a Strike
Pursuant to New York Labor Law, an employee's unemployment benefit rights are suspended for seven weeks, beginning the day after the end of employment, as a result of a strike. See +NY CLS Labor § 592(1)(a). In other words, employees on strike must wait seven weeks from the commencement of the strike in order to receive unemployment benefits.
However, a striking employee may be entitled to unemployment benefits sooner if the employer hires a permanent replacement worker for the employee's position. See +NY CLS Labor § 592(1)(b)(i). Additionally, if it is determined that the employee is not employed by the employer involved in the strike causing their unemployment; or is not part of the union involved in the strike that caused their unemployment, benefits are similarly not suspended. See +NY CLS Labor § 592(1)(b)(ii).
Unemployment Benefits During a Lockout
An employee is eligible to receive unemployment benefits during a lockout. Unlike a striking employee, a locked out employee is eligible for unemployment benefits immediately upon the commencement of the lockout. A lockout is when an employer prevents employees from working after the union directs them to return to work after a strike under the preexisting terms and conditions of employment.
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