Professor James Brudney is quoted in Vox for an article that provides answers to frequent questions on what is and is not allowed when it comes to labor strikes.
The wave of labor unrest has become a defining feature of the economy since the 2008 Great Recession. In 2018, a record number of employees went on strike: School teachers, hotel workers, health care workers — even Google employees. Most of them were angry about stagnant wages and proposed benefits cuts, but some were just frustrated with company policies.
But all the walkouts have raised the question of what, exactly, counts as a strike and what are the consequences? Is it the same as a walkout? Is it even legal?
I spoke to four labor lawyers across the country to get a better understanding of what legal rights workers have to throw up their hands and walk off the job — and what right a company has to respond.
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Can workers get fired for going on strike?No, but a company can permanently replace a striking worker by hiring someone else. I know it sounds like the same thing, and in practice it is, but there’s some nuance.
The Supreme Court has ruled that companies have a right to hire replacements to keep the business running during the strike. And even when the strike is over, replacement employees have a right to keep their job. All that an employer has to do is guarantee that a striking worker will get first dibs on any job that opens up in the following year. But there’s no guarantee that a position will open up.
So getting fired and getting replaced are basically the same thing.
“It’s a legal distinction with very little practical significance,” James Brudney, the Joseph Crowley chair in labor and employment law at Fordham University, explained to me.