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 pressure the employer for improvements to the employees' wages, benefits or work rules (i.e., an economic strike), or to protest the employer's alleged unfair labor practices (i.e., an unfair labor practice strike).
• The determination is critical because an employer is only allowed to hire permanent replacements during an economic strike. The returning, striking employees are entitled to be restated to any available vacant positions, unless the employer can show a legitimate, substantial business justification against reinstatement.
• Regardless of whether a strike is for economic reasons or the result of an unfair labor practice, 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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