Labor law in the age of social media

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2 Responses

  1. Dave Hoffman says:

    But would we privilege employer-related organizing speech over, say, political speech (which you’d still be able to be not-hired or fired for, I imagine).

  2. This is an area of tremendous interest to me. Worker self-organization is imperative, and should be fostered at every turn in every way.

    The challenge I see is that if workers do not form a union, with the right to bargain a legally enforceable contract, informal worker self-organization is rather episodic. On the one hand, I am inspired by workers whose coordinated action results in enforcement of their rights under, e.g., the FLSA. On the other hand, such victories do little more than enforce the minimum labor standards to which all at-will employees are legally entitled. It’s a nice outcome, but kind of like a pleasant TV pilot that’s not quite good enough to turn into a series. The power of collective bargaining is that workers are able to obtain, through group action, working conditions that are substantially above the statutory floor afforded to at-will employees. Because these gains are contractually protected, they are more solidified and longer lasting.

    That’s a bedeviling part of these Facebook cases. They are tremendous examples of resistance to employer infringement of Congressionally created free-speech rights, but it’s not evident whether or how the vindication of those free speech rights can kindle organizing beyond an episodic focus on a single concern. Indeed, many of the Facebook cases are about employees who are lashing out, but who have not (yet?) focused their frustration toward compelling the employer to fix the problem. This coordinated venting about poor working conditions is a wonderful dormant fuel, but what will be the spark that ignites this talk into full-burning action for change?

    On a side note, I was intrigued by the suggestion that publication of Facebook pages — with time stamps, etc. — is to workers’ advantage. That’s certainly true if litigation occurs. But the fact that this speech occurs quite publicly means that an employer may become aware of the concerted, protected activity early in the process. The employer can learn exactly who is involved and exactly what employees are saying. That may be quite detrimental to employee organizational efforts where an employer reacts swiftly and punitively. A nascent legal question that has been on my mind is whether an employer intereferes with employees’ Section 7 rights by viewing an employee’s social media page, even if that page is public, under a surveillance theory.

    Thank you for an interesting post.