Resource Library

Free Online Legal Resources

Going on Strike: Labor FAQ

Workers may choose to protest unfair wages or other issues with their employer by going on strike. During a strike, workers do not provide any services to the company that employs them. However, there are rules against firing or otherwise retaliating against those who decide to go on a strike. Take a detailed look at how employees are paid on strike and what their rights are while taking such action.

How do You Protect Benefits While on Strike?

To ensure that workers will have a job to return to after the strike is over, it is important to make sure that the strike is legal. According to the National Labor Relations Board (NLRB), there are two ways in which a strike constitutes protected National Labor Relations Act (NLRA) activity.

A strike is lawful if it is deemed to be an economic strike or if it is deemed to be an unfair labor relations strike. These are what are known as lawful objects under the NLRA. A lawful economic strike is one that is undertaken to obtain higher wages, shorter hours, or other objectives that would increase a person's earning power. All other strikers are generally considered to be unfair labor practice strikers.

If a strike is undertaken for economic purposes, workers may be replaced by their employers. However, when the union agrees to end the strike without conditions, striking workers must be allowed to return to a similar position or be the first called when new positions become available. Those who are striking to demand changes to unfair labor practices in most cases cannot be replaced. The only exception is if an employee engages in significant misconduct while away from work.

Generally speaking, those who are part of a legal strike cannot lose their health insurance or other benefits. While they may not receive them during a strike, these benefits must generally be made available to workers after they return to their jobs. For example, if a worker earns vacation time while out on strike, he or she must be given that accrued time upon returning to an employer. Workers may also be entitled to receive other benefits such as contributions to a retirement plan or contributions toward a Health Savings Account (HSA).

Are Workers Paid While on Strike?

When a worker chooses to go on strike, that person is not entitled to a normal paycheck from their employer. However, many unions will have a strike fund that will help striking employees meet their basic financial needs. Those who belong to the United Automobile Workers (UAW) receive weekly pay in addition to bonus checks for the Thanksgiving and Christmas holidays.

Those who work for the International Brotherhood of Teamsters are eligible for either a flat rate of $75-$110 weekly or a rate equal to four times their weekly contribution. In addition to strike pay, workers may also have some or all of their insurance coverage paid for them. In some cases, the union will make COBRA payments to keep workers insured throughout the duration of a strike.

If the union does not make COBRA payments on behalf of employees, the employees themselves may have the option of making such payments. This entitles them to the same coverage that they received while employed, and this generally lasts for up to 18 months. However, those who decide to make use of this option must pay the full monthly premium on their own.

It is important to note that if a person lives in a right-to-work state, it may be possible to resign from a union or not join a union at all. This means that in states such as Texas or Virginia, a worker can leave a union and go back to work if the employer is still operating while a strike is ongoing.

Are Workers Eligible for Unemployment Benefits?

As a general rule, a worker who goes on strike is not allowed to collect unemployment benefits. This is because those who are on strike are generally considered to have left their workplace voluntarily. In most cases, they are not actively looking for new jobs as they are likely to return to their current employer when the strike is over. Therefore, they would not meet the criteria to collect such benefits.

However, there are exceptions to that rule depending on whether that person willingly went on strike or if he or she was still unemployed after the strike ended. Furthermore, state law may allow a person to collect unemployment benefits during a strike depending on how long it lasts.

For instance, in New York, a worker may be allowed to apply for and collect unemployment benefits if a strike lasts for more than 49 days. New York law may allow workers to collect benefits prior to 49 days if they are locked out as opposed to going on strike. A lockout is an action taken by management that forces workers to remain away from the workplace.

Those who are on strike and have questions about their rights may want to talk to their union representative. This person may be able to answer questions about what benefits they offer to striking workers and how going on strike may impact their job status going forward. It may also be beneficial to consult with an attorney who may be able to answer questions about their right to apply for unemployment or other benefits while out of work.

Speak to an Experienced Labor Law Attorney Today

This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified labor lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local labor attorney to discuss your specific legal situation.

Additional Labor Law Articles

Search LawInfo's Labor Law Resources

Find an Attorney in Your Area

Ashburn Labor Law Attorneys