Your morning shift doesn't show up. Instead, workers are gathered outside with signs reading "Fair Wages Now" and "Respect Service Workers." Your business is paralyzed. Customers are frustrated. And you're wondering: Is this legal? Can I fire them? What do I do right now?
Employee strikes are rare in restaurants and retail, but they're happening more frequently. Understanding your rights and obligations under federal law is critical, because mistakes can cost you hundreds of thousands in back pay and legal fees.
Disclaimer: This article provides educational information only and is not legal advice. Labor law governing strikes is complex and fact-specific. Consult with an experienced labor attorney before taking any action in response to a strike.
What Is an Employee Strike?
An employee strike is a coordinated work stoppage where workers refuse to perform their jobs to pressure an employer into meeting demands. Strikes can happen with or without a union and are protected under Section 7 of the National Labor Relations Act, which guarantees employees' right to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.",The U.S. Supreme Court confirmed in NLRB v. Washington Aluminum (1962) that even non-unionized workers who walk out because conditions are unsafe have legal protection.
Protected vs. Unprotected Strikes
Not all strikes receive legal protection. The distinction matters enormously:
Protected Strikes: Employees cannot be fired for participating in protected strikes, though they may be permanently replaced in some circumstances. These include:
Unfair Labor Practice Strikes: Workers strike to protest illegal employer conduct (like firing someone for union activity). These strikers cannot be permanently replaced; they must be reinstated when the strike ends.
Economic Strikes: Workers strike for better wages, benefits, or working conditions. These strikers can be permanently replaced, but if their jobs are still open when the strike ends, they're entitled to return.
Sympathy Strikes: Workers strike to support other employees who are striking, even at different companies. Generally protected, though some limits apply.
Unprotected Strikes: Employers can fire participants without violating federal law. These include:
- Violent or Threatening Strikes: Strikers who physically block entrances, threaten non-striking employees, or attack management lose protection.
- Intermittent Strikes: Repeated short walkouts designed to maximize disruption while minimizing worker risk. The NLRB has ruled these "hit-and-run" tactics unprotected.
- Partial Strikes: Workers who remain on the job but refuse to perform certain duties (like refusing to work overtime or boycotting certain tasks).
- Unlawful Objective Strikes: Strikes to force an employer to commit an unfair labor practice or to achieve an illegal purpose.
- Sit-Down Strikes: Workers who occupy the premises but refuse to work are not protected.
- Wildcat Strikes: Strikes by unionized workers without union authorization, violating a collective bargaining agreement's no-strike clause.
Can You Fire Striking Workers?
It depends entirely on the type of strike:
Unfair Labor Practice Strikers: No. You cannot discharge or permanently replace workers striking to protest your illegal conduct. When the strike ends, they must be reinstated even if you've hired replacements.
Economic Strikers: You cannot discharge them, but you can hire permanent replacements. If replacements fill their positions, economic strikers go on a preferential hiring list for future openings.
Unprotected Strikers: Yes, you can terminate them.
The National Labor Relations Board provides detailed guidance on these distinctions, but determining which category applies often requires legal analysis.
Recent Strike Examples in Service Industries
Starbucks (December 2024): Workers at over 500 unionized stores launched coordinated strikes during the Christmas season, one of Starbucks' busiest periods. The union represented about 10,000 workers (5% of Starbucks' U.S. workforce). According to CalMatters reporting, the strikes aimed to pressure Starbucks to reach a first contract after three years of negotiations. Workers complained that offered wage increases (1.5-2%) were inadequate. The strikes ended after five days without achieving immediate concessions, though negotiations continued.
Amazon (December 2024): Teamsters-organized drivers at multiple Amazon facilities struck during the peak holiday delivery season. The strikes affected facilities in New York, California, Illinois, and Georgia. Amazon refused to recognize the union, arguing drivers work for independent contractors, not Amazon. According to reporting on the strikes, the NLRB had found Amazon was a "joint employer" of drivers, requiring the company to bargain. Amazon filed suit challenging the NLRB's constitutionality. Drivers returned to work after one week without contract agreements.
Los Angeles Hospitality (2023): UNITE HERE Local 11 coordinated strikes at multiple hotels simultaneously, affecting properties operated by Marriott, Hilton, and Hyatt. Over 15,000 workers participated across Southern California. The strikes lasted intermittently for months, with rotating walkouts at different properties. Workers eventually won significant wage increases (30-40% over four years) and improvements to workload standards.
Fast Food Workers (2013-2020): The "Fight for $15" movement organized hundreds of short strikes at fast-food chains nationwide. While most strikes lasted only a day and many participants weren't directly employed by targeted companies, the campaign influenced minimum wage laws in multiple states and cities. The movement demonstrated how even brief, repeated strikes could shift public opinion and policy.
What Triggers Strikes in Restaurants and Retail?
Service industry strikes typically arise from:
Insufficient Wages: Workers can't afford housing on current pay, especially in high-cost cities. Demands for $15-$20+ minimum wages drive many organizing efforts.
Unpredictable Schedules: Last-minute schedule changes, insufficient hours, and on-call requirements make life planning impossible.
Unsafe Working Conditions: Inadequate staffing, broken equipment, hostile customers without management support, health exposure risks.
Lack of Benefits: No health insurance, no paid sick leave, no retirement benefits.
Disrespectful Treatment: Managers who yell, discriminate, or ignore concerns create resentment that boils over.
Tip Theft: Illegal pooling arrangements, managers taking tips, or wage violations.
Retaliation: Firing or punishing workers who complain about conditions.
Your Legal Obligations During a Strike
When workers strike, you must be careful to:
Do Not Retaliate: You cannot fire, discipline, or threaten employees for participating in a protected strike.
Continue Benefits: For unfair labor practice strikers, you must continue health insurance and other benefits. For economic strikers, benefit continuation depends on your policies and any collective bargaining agreement.
Bargain in Good Faith: If the strike relates to contract negotiations with a union, you must continue meeting and negotiating.
Respect Picket Lines: Strikers can picket your business, though there are rules about where they can stand, how many can picket, and what they can say. They cannot:
- Block entrances or exits
- Threaten violence
- Damage property
- Harass customers excessively
Maintain Neutrality: You cannot assist or encourage non-striking employees to interfere with the strike.
Avoid Surveillance: You cannot spy on strikers' activities or create the impression you're surveilling them.
What You Can Do During a Strike
Communicate Your Position: You can explain to the public and to employees why you believe the strike is unwarranted. Be factual and avoid threats.
Hire Replacements: You can hire temporary or permanent replacements for economic strikers. For unfair labor practice strikes, replacements can only be temporary.
Continue Operations: You can use managers, temporary workers, and non-striking employees to keep your business running.
Lock Out Workers: In some circumstances during contract negotiations, you can lock out unionized employees. This is complex and requires legal guidance.
Offer to Negotiate: You can reach out to strikers or their union to resolve the dispute.
Health Care Institution Special Rules
If you operate a hospital, nursing home, or other health care facility, special rules apply. Section 8(g) of the NLRA requires unions to provide at least 10 days' written notice before striking or picketing. This protects patient safety. Strikes without proper notice are unprotected, and participants can be fired.
Replacement Workers: Temporary vs. Permanent
The distinction between temporary and permanent replacements is critical:
Temporary Replacements: When the strike ends, strikers return to their jobs and replacements are let go.
Permanent Replacements (Economic Strikes Only): Replacements are hired with no set end date. If they're still working when the strike ends, economic strikers don't automatically get their jobs back. They go on a preferential hiring list for future openings.
Unfair Labor Practice Strikes: You can only hire temporary replacements. When the strike ends, strikers must be reinstated even if you have to discharge the replacements.
Misclassifying the strike type can result in massive back pay orders. If you call it an economic strike and hire permanent replacements, but the NLRB later determines it was an unfair labor practice strike, you'll owe back pay to every striker from when they should have been reinstated.
Misconduct During Strikes
Even protected strikers can lose protection through misconduct:
Violence or Threats: Physical attacks on managers, threatening non-strikers, or threats of violence.
Property Destruction: Vandalism, sabotage, or theft.
Blocking Access: Physically preventing people from entering or leaving your business.
Severe Misconduct: Behavior that goes beyond picketing rhetoric, like using racial slurs or making specific threats of harm.
Importantly, mere verbal nastiness, vulgar signs, or angry rhetoric is usually not enough to strip protection. Context matters enormously.
Strikes Without Unions
Non-unionized workers can strike, and often do. Protection requires that workers are acting "concertedly" (as a group) for "mutual aid or protection."
Examples of protected concerted activity:
- Several servers walk out because the air conditioning is broken and it's 95°F in the restaurant
- Retail workers refuse to work until management addresses safety concerns
- Kitchen staff strike for a wage increase after the employer cuts everyone's pay
For the activity to be protected:
- Multiple employees must participate (one person alone usually isn't "concerted")
- The purpose must be work-related, not purely personal
- The method must not be unlawful or violent
The "Intermittent Strike" Trap
A relatively new development in labor law affects service workers significantly. In Walmart Stores, Inc. (2019), the NLRB ruled that planned, repeated short strikes are "intermittent strikes" that lack protection.
The Teamsters had organized multiple one-day walkouts at Walmart stores over several months. The NLRB found that this strategy of striking, returning, then striking again was unprotected. Workers could be fired.
This ruling makes traditional strike tactics risky for workers but also more complicated for employers. If each walkout genuinely responds to new circumstances rather than being pre-planned, it may still be protected.
Strike Timing and Holiday Leverage
Many recent service industry strikes happen during peak seasons:
- Starbucks strikes during Christmas week
- Amazon strikes during holiday delivery period
- Hotel strikes before major conferences or events
- Restaurant strikes on Mother's Day or Valentine's Day
This timing maximizes workers' leverage but also tests customer patience. Public opinion often determines strike success as much as legal rights.
What NOT to Do During a Strike
Don't threaten: "If you strike, we'll fire everyone" is an unfair labor practice if the strike would be protected.
Don't promise benefits: "Come back and we'll give everyone a raise" can be seen as coercing employees to abandon protected activity.
Don't discipline selectively: If you tolerate absence in some circumstances but punish strike absences, that's retaliation.
Don't spy: Sending managers to photograph strikers, infiltrating organizing meetings, or reviewing social media for strike planning can violate the NLRA.
Don't interrogate: Asking employees about their strike participation or pressuring them to explain their actions is prohibited.
Don't bar strikers from returning: When protected strikes end, you must allow workers to return (subject to replacement worker rules).
The Union Contract "No-Strike Clause"
Most collective bargaining agreements include "no-strike clauses" where the union agrees not to strike during the contract term. These are enforceable.
If unionized workers strike in violation of a no-strike clause, it's a "wildcat strike" and participants can be disciplined or fired, even if their grievances are legitimate.
However, no-strike clauses don't prevent unfair labor practice strikes. If you violate the NLRA, workers can strike even with a no-strike clause in effect.
Navigating the First 24 Hours of a Strike
Hour 1 - Don't Panic: Take a breath. You have time to respond appropriately. Avoid rash decisions.
Hour 2 - Call Your Labor Attorney: Before doing anything else, get legal advice on what type of strike this appears to be and what your options are.
Hour 3 - Assess Operations: Can you operate with managers and non-striking employees? Do you need to close temporarily? Should you hire replacements?
Hour 4 - Communicate: Draft a message to customers explaining any service disruptions. Be neutral and factual.
Hour 6 - Document Everything: Photograph picket signs (to show what demands are), document who's striking, note any misconduct, save all communications.
Hour 12 - Consider Negotiation: Is there a reasonable path to resolution? Can you address legitimate concerns?
Hour 24 - Plan Long-Term: If the strike continues, you need a staffing plan. Replacement workers? Reduced hours? Temporary closure?
The Settlement Process
Most strikes end through negotiation:
- Workers return with agreed-upon improvements
- Employers address some but not all demands
- A mediator helps both sides compromise
- Outside pressure (media, customers, investors) forces resolution
For unionized workers, strikes typically end when a contract is reached. For non-unionized workers, strikes often end with management promising to address concerns, followed by slow improvements (or lack thereof).
After the Strike
When a strike ends:
Document Everything: Note when each employee returns, whether you can rehire everyone, and any changes to positions.
Follow Through on Promises: If you agreed to improvements, implement them. Failing to do so invites future strikes or unfair labor practice charges.
Avoid Retaliation: Don't punish returning strikers through bad schedules, reduced hours, or harsher discipline.
Rebuild Relationships: Strikes create bad blood. Depending on the outcome, you may need to work on repairing trust.
Learn from It: What drove the strike? Even if you "won," understanding employee concerns helps prevent future problems.
The Bottom Line
Strikes are legally protected in most circumstances, but the specific facts matter enormously. The type of strike, the workers' conduct, and your responses all determine whether firings will be upheld or result in massive back pay orders.
The best strike strategy is prevention: pay fairly, treat employees respectfully, maintain safe conditions, and respond to concerns before they escalate to collective action. But if workers do strike, move carefully with experienced legal counsel guiding every decision.
