Determine Whether Striking Employees May Be Replaced

Key Points

  • Before an employer replaces any of its striking employees, it must determine whether the union is conducting the strike to place pressure on the employer for improvements to their wages, benefits or work rules (economic strike) or to protest alleged unfair labor practices by the employer (unfair labor practice strike).
  • This is critical because an employer is allowed to hire permanent replacements only during an economic strike. At the end of an economic strike, the permanent replacements may retain their positions. The returning striking employees are entitled to restatement to any available vacant positions, unless the employer can show a "legitimate substantial business justification."
  • Regardless of whether it is an economic strike or an unfair labor practice strike, an employer may hire temporary replacements. These replacements, however, may be "displaced" by returning strikers at the conclusion of the work stoppage.

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