by Michael Sarko
– The Capitol Hill Times –
On May 30, 2013, Carlos Hernandez walked out of his job at the Subway restaurant on Broadway. It was part of the first fast food workers’ strike of the year, which Hernandez helped organize. He walked out again on August 29, when several organizations, including Good Jobs Seattle and the Socialist Alternative political party, organized a rally and march in favor of establishing a $15 minimum wage in Seattle. In September, Hernandez lost his job, leading to a federal lawsuit filed on his behalf by Good Jobs Seattle against the national Subway corporation for wrongful termination.
Good Jobs Seattle alleges that managers from Subway fired Hernandez under false pretenses in retaliation for his highly visible involvement in the recent strikes. According to those managers, Hernandez was officially fired for giving away a cookie to a small child, totaling 66 cents in lost revenue. Citing long-standing federal labor laws that prohibit terminating a person’s employment for striking, representatives at Good Jobs Seattle believe the stated reason for Hernandez’s firing was an attempt to circumvent such laws.
An image circulated among Seattle-area press depicts a work citation on the letterhead of the Subway restaurant located at 2002 Fairview Avenue, which is the central office store for all Subways managed by a firm called Zeer Incorporated, including the shop on Broadway. The citation doesn’t list an employee name, a store number or a date of warning. In handwritten text, it reads, “This warning is issued because of your leaving the store as part of an unofficial, unorganized labor protest. This involved leaving without informing management, leaving food out and equipment running, and contacting other employees in an attempt to get them to join the protest. These actions resulted in several hours of loss of business for each store closed. This is a final warning and a repetition of this conduct will result in termination of employment.”
When the citation says “unofficial, unorganized labor,” it is likely referring to the legal distinction between strike actions taken by a recognized labor union and those taken by non-union employees. This is a major point of legal contention between non-union strikers and employers. U.S. labor law, specifically the Labor Rights Act and its amendments, lay out the legal protections and justifications for strikes. Some argue that, as non-unionized employees, workers in the fast food and other service industries have no legal right to strike and are simply abandoning their jobs during strike actions.
In a similar case from earlier this year, several Walmart employees were fired for participating in widespread strikes protesting its alleged poor treatment of employees. A spokesperson for Walmart responded to allegations that the company had retaliated against strikers by saying, “…our decision had everything to do with what was a violation of attendance policy and nothing to do with a specific protest.”
The National Labor Rights Board, the independent government agency that oversees and examines labor disputes, does have some provisions for non-union workers, which include the forming of employee committees, as well as actions known as concerted activities. A concerted activity is when employees get together to make demands on behalf of all employees. As long as those demands are considered reasonable and for the benefit of all employees in the company, the NLRB deems it legal. Demanding fair wages falls under approved concerted activities.
One potential roadblock for the lawsuit is what is known as “at-will” labor laws in the state of Washington. Put simply, all employers in Washington, unless otherwise stated, are considered “at-will” employers, meaning that they may terminate someone’s employment for any reason or no reason, and any employee may quit for any reason or no reason. Though Subway provided a reason for Hernandez’s termination, the company was not legally obligated to do so.
It is the task, then, of Good Jobs Washington and the organization’s attorneys to prove that the Zeer Inc. Subway restaurants violated federal law by not only fireing Hernandez for participating in the strike (or concerted action), but that the fast food workers’ strike and the $15 minimum wage demonstrations were, in fact, concerted activities.
Along with the lawsuit, Good Jobs Seattle has been organizing demonstrations outside of Zeer Inc. Subway shops since the last week of September. These picket demonstrations target the stores at typical lunch hours during the workweek, strongly discouraging people from supporting those businesses. According to Good Jobs Seattle, these pickets have been effective and will continue until Subway rehires Hernandez and makes company policy changes that explicitly protect protesting workers.