Tim Scott suggests workers who strike should be fired. Here’s what the law actually says

At a campaign event earlier this month in Fort Dodge, Iowa, Sen. Tim Scott of South Carolina said former president Ronald Reagan had it right when he fired thousands of striking air traffic controllers in 1981.

“Ronald Reagan gave us a great example when federal employees decided they were going to strike,” the Republican presidential contender said. “He said, ‘You strike, you’re fired.’ Simple concept to me.”

The comment was met by immediate blowback from the labor movement, as the number of strikes and other labor actions has exploded this year. Some 362,000 workers have gone on strike so far in 2023, compared with 36,600 over the same period two years ago, according to the Cornell ILR Labor Action Tracker.

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The United Auto Workers union filed a labor complaint against Scott for his remarks, accusing his campaign of interfering with workers’ rights to engage in union activity under federal law. Thousands of auto workers have gone on strike at plants across the country of late, demanding higher wages and better benefits.

Kenneth Dau-Schmidt, a law professor at Indiana University Bloomington, said that Reagan’s controversial action firing air traffic controllers continues to be condemned and revered, depending on whom you’re talking to.

“There never had a been a president so hostile to union workers, and it could have gone bad,” Dau-Schmidt said. “If one plane went down, Reagan would have looked like a goat.

“But there were no major crashes, and conservatives now just say, ‘You have to be tough,” Dau-Schmidt added.

A spokesperson for the Scott campaign defended the senator’s comments.

“Sen. Scott has repeatedly made clear, both at that event and others, that Joe Biden shouldn’t leave taxpayers on the hook for any labor deal,” they said.

Here’s what the law says about firing workers on strike.

The National Labor Relations Act of 1935 granted private sector workers the right to strike, said Sharon Block, a professor at Harvard Law School and the executive director of the Center for Labor and a Just Economy.

“Under the NLRA, strikers cannot be fired for striking.” Block said.

The idea being, Dau-Schmidt added, that “if capital is going to be organized, then labor should be organized, too.”

However, when Reagan fired the air traffic controllers, he was acting within the law because the NLRA’s right to strike does not apply to federal employees, Dau-Schmidt said.

Although Scott specifically cited a case of firing federal workers at the campaign event, his comments were widely taken as hostile toward all union activity.

Even though private sector workers’ on strike are protected from termination, they can in certain cases be temporarily or permanently replaced if their employer hires someone else to do their job, Dau-Schmidt said.

“Permanent replacement looks a lot like firing from the employees’ perspective,” he said.

Still, workers have certain protections.

If a striker’s replacement leaves the job for whatever reason, the worker who was on strike must be offered the position before anyone else is hired, Block said.

If workers were on strike due to unfair labor practices as opposed to economic conditions, they may also have a right to reinstatement.

Beyond the law, it would be foolish from a business perspective for the automakers, or any big company, to hastily part ways with their labor force, Dau-Schmidt said.

“If they started firing these workers, they’d find all of UAW workers on strike,” he said. “It could take months or years to replace everyone, and they’d lose a lot of money.”

— Additional reporting by CNBC’s Spencer Kimball.