Unions continued to dominate headlines in late 2023, with the Starbucks saga continuing to unfold and the United Auto Workers (UAW) – for the first time in its history – coordinating a simultaneous strike at the “Big Three” automakers in Detroit.

The UAW's historic strike against American auto manufacturers was not an outlier. According to a recent article in U.S. News & World Report, “It was called the ‘summer of strikes’ or ‘hot strike summer’ – only the movement continued into fall and winter, too. More than half a million workers staged nearly 400 strikes during the first 11 months of 2023, according to Cornell University’s Labor Action Tracker.”

What drove the increased strike activity? The article notes that many labor agreements were up for renewal in 2023, which is part of the equation. It further, explains, however, “Workers felt empowered by other highly visible and successful strikes (or threats to strike) and a tight labor market, emboldening them to ask for higher pay and other benefits…”

The confluence of more media attention, perceived labor wins after high-profile strikes (such as with the UAW at the Big Three) and the tight labor market all likely contributed to this uptick. It is also notable that this surge in strike activity comes on the heels of an increase in 2022 as well.

A myriad labor law and other legal issues come into play for employers when workers decide to go on strike. For example:

• If workers strike, they generally cannot be disciplined or terminated – but they may be able to be permanently replaced, depending on the nature of, and circumstances giving rise to, the strike
• In the event union-represented workers sabotage or leave a company's property, equipment, etc., in an unsafe state that results in damage, employers may be able to initiate litigation to recoup damages based on a recent change to labor law
• Unions and employees generally have a right to picket peacefully on public property outside and adjacent to an employer's property. Employers may not engage in surveillance – or even create the impression of surveillance – of lawful picketing activity. Companies often trip up, for instance, by setting up new video cameras to record picketing activity before any illegal conduct occurs.
• In some states, employees on strike get unemployment benefits in certain circumstances and in others they do not
• Most – but not all – benefit plans provide that employees on strike are not eligible for benefits and must elect COBRA, which typically is very costly, to continue coverage

Countless other legal issues come into play as well. Given the rise in strike activity over the last two years, any employers who have expiring labor agreements coming up would be well-suited to dust off their contingency plans and start getting a game plan in place to address the numerous issues that may arise.