Background

Every few years there is a push to organize fast-food workers. The current fast-food labor movement began last November in New York, where about 200 restaurant workers went on a one-day strike to protest their wages. The workers in the fast-food and now retail industries are seeking to unionize and demanding at least $15 an hour in pay, which is more than twice the current federal minimum wage of $7.25.

Since November, the movement has spread across the country. This past July thousands of workers in seven cities, including Chicago and Detroit, joined the movement. Workers at fast food restaurants and retailers such as Macy’s are planning to engage today in a nationwide strike in 35 cities. 

The movement is supported by existing labor unions such as the Service Employees International Union (SEIU), which has set a long term goal to engage workers in low-wage service industries. However, most of the nation’s fast-food workers are not unionized. Given the fast food industry’s high turnover rate, youthful workforce, new workers, and unwillingness to pay dues, unions have had a difficult time organizing fast-food workers. But given the low wages and few, if any, benefits afforded most workers, unions believe that this growing industry may now be ripe for the picking.

The Unions’ Endgame

The unions’ stated goal is to pressure fast food employers to agree to significantly higher wages and improved labor standards, and to obtain legislation increasing private sector minimum wages. These objectives would not only help fast-food workers, but would also help the employees in the hospitality and retail sectors that the unions already represent. If fast food workers’ wages increase, there would be pressure on employers in these other sectors to increase wages for unionized employees higher up the wage scale.

But with declining membership rolls, many suspect that unions are not primarily motivated by the altruistic goal of improving fast-food workers’ pay, but rather to organize the fast-food industry. On the other hand, some doubt that unions can profitably service a fast food contract if they are successful in organizing a restaurant. Accordingly, an alternative theory is that unions might be looking to transform the traditional representation model in order to operate more like an association. Indeed, one commenter has stated that for unions to survive, “they must change their model to be more like AARP or the NRA” or like a “pre-paid legal” service where unions allow “anyone to join and offer a pile of benefits to members independent of where they live or where they work.” We have seen little evidence at this point indicating that unions are headed down that path for fast-food workers, but it remains an angle to watch.

Implications

For fast-food and retail employers targeted by this labor movement, the primary concerns are likely what can be done about the strikes and how can they protect their rights in the face of these very public and high-pressure organizing efforts.

The National Labor Relations Act (NLRA) protects employees’ right to form and join a union, and thus prohibits employers from interfering with that right or retaliating against employees for attempting to form a union. The NLRA also prohibits employers from disciplining or terminating employees for going on strike. However, if the strike is only to protest their wages and working conditions, and not to protest any alleged unfair labor practices by their employer, then the striking employees would be considered economic strikers. As such, they would retain their status as employees, but they could be replaced by their employer under certain circumstances. However, employers should consult their labor counsel if their employees plan to engage in multiple, short-term strikes as such “intermittent strikes” are not protected by the NLRA.

While there have been labor movements every few years targeting fast food employers with little to no organizing success, the combination of publicity and social media this go around might finally give the unions enough momentum to gain some traction in the industry. Accordingly, to minimize the impact of this organizing campaign, fast food and retail employers must be vigilant in promoting and maintaining positive employee relations and ensuring compliance with all employment laws and regulations.

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