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Welcome to Reed Smith’s Monthly Global Employment Law blog post. This month’s post covers the legality of employee strikes in five key jurisdictions: France, Germany, Hong Kong, the UK and the United States.

France

According to the French Supreme Court, a lawful strike action is defined as a collective cessation of work, the purpose of which is to support professional claims. In the private sector, the right to strike, as a constitutional right, cannot be restricted or regulated by a collective agreement or by the employer itself. There is thus no obligation to comply with a specific notice period prior to going on strike. Employees, however, must inform the employer of their claims at the time they decide to stop working and go on strike.

Employment contracts are suspended during the strike (i.e., the employees do not perform their duties and the employer does not pay them). Employees on strike are protected against any disciplinary sanctions, including dismissals in the sense that any sanctions that may be imposed where there is lawful strike action are deemed to be null and void. This protection does not apply when the strike is unlawful (i.e., the action does not support professional claims or where the employees on strike prevent non-strikers from working).

The majority of strike actions are usually settled without having to commence legal action before the courts.

Germany

In Germany, a strike is the typical industrial action on the part of the employees and trade unions. To be legal, a strike must meet certain formal requirements and pursue a legitimate purpose. Formally, a strike must be (i) organised by a trade union; and (ii) called following a strike vote conducted according to democratic principles. Therefore, a so-called “wildcat” strike, which is not organised by a trade union, is illegal. Any strike must pursue a legal purpose, which can only be to change working conditions. Furthermore, a strike must be conducted in a reasonable and lawful manner. Therefore, the union may not occupy the premises, call on customers of the employer to boycott the product, or prevent employees willing to work from entering the premises and working.

Continue Reading The legality of employee strike action

In a just-released Advice Memorandum found here, the NLRB General Counsel’s office (“GC”) publicized its position that employers must bargain with their unions before implementing new social media policies. The Memo “casually” notes that work rules, such as social media guidelines, provide an independent basis for discipline and are mandatory subjects of bargaining.  According to the GC, even if an employer navigates around the ever-increasing landmines set by the Board and GC in developing a social media policy, employers must also seek union approval before implementing the policy, unless, of course, the underlying collective bargaining agreement contains a clear and unmistakable waiver of the union’s right to bargain over such policies.Continue Reading NLRB General Counsel Keeps Unfriending Employer Social Media Policies

NLRB holds that employer’s practice of requesting employees to keep internal investigations confidential violates the NLRA.

The National Labor Relations Board ("NLRB" or "Board") is at it again, this time finding that an employer’s policy prohibiting employees from discussing ongoing investigations of employee misconduct infringes upon employees’ Section 7 rights in violation of Section 8(a)(1) of the National Labor Relations Act ("Act" or "NLRA"). Banner Health Sys. d/b/a Banner Estrella Med. Ctr., 358 NLRB No. 93 (July 30, 2012).Continue Reading NLRB Forbids “Do Not Discuss” Warnings to Employees During Confidential Investigations