Yes, employees do have a right to strike lawfully. The problem is that not all strikes are considered lawful, and there isn’t always a cut-and-dry definition of when striking is unlawful or not.
When strikes are not considered lawful, then employees are not protected by the right to strike. That means that they might not be reinstated or receive backpay, The National Labor Relations Board considers numerous factors, including the behavior of strikers, when determining whether a strike was lawful. They also consider to what purpose the strikers were action.
The two most common lawful reasons for strikes are as a negotiation strategy when seeking economic concession from an employer and to protest an unfair labor practice. If employees feel they are unpaid and they strike seeking higher wages, then its known as an economic strike. While employees do have the right to strike for such a reason and remain an employee of the company during the strike, the employer also has a right. The employer can hire replacement staff to fill positions left open by strikers. In certain circumstances, the strikers are not guaranteed a position when they apply to return to work. In the case of striking for unfair labor practices, employers cannot permanently replace strikers.
Strikes can be considered unlawful because the purposes behind the strike are unlawful. If employees are striking to encourage an unlawful labor practice, then the strike is unlawful. Striking at certain times, such as those prohibited under a contract, might be considered unlawful. Strikers who engage in illegal or serious misconduct during a strike might also give up their rights as employees. Understanding whether you are protected during or after a strike can be difficult, which is why involving a third-party legal professional is often a good idea.
Source: National Labor Relations Board, “NLRA and the Right to Strike,” accessed May 03, 2016
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