Labor law in the age of social media
posted by Brishen Rogers
Over seventy-five years ago Congress passed the National Labor Relations Act, which granted an administrative agency the powers to determine whether workers desired union representation and, if so, to hold employers to a duty to bargain. Part of the theory behind the Act was that bestowing legal legitimacy upon unions would end our long history of violent battles over union recognition. Yet today organizing a union remains very, very hard. For one thing, employers have both economic incentives and legal powers to resist unionization. For another, lower-skilled workers who stand to benefit the most from unionization face some of the most intractable collective action problems, and the most powerful incentives to avoid employers’ ire. The difficulty of organizing has various social costs, including increased inequality and few guarantees of due process on the job, and has sparked recurring debates over whether to change union certification procedures. Such questions dominate both academic and political debate within labor law.
I’m beginning to wonder whether an alternative reform would be more politically palatable, and almost as fruitful, particularly in the age of social media. As I suggest at the end of a forthcoming article entitled “Passion and Reason in Labor Law,” some of the normative goods associated with labor law can be achieved, not just through union certification and collective bargaining, but also through workers’ collective action on its own.
This is not exactly a new idea. Since its passage, Section 7 of the Act has protected workers’ rights to act collectively in pursuit of mutual interest regardless of whether they seek union certification; and, in fact, workers do so with surprising frequency, for example by approaching managers to request raises or better safety procedures, or to request help reining in an abusive co-worker or supervisor.
If Congress rewrote the Act to require powerful and fast relief when employers retaliate against such workers – relief including reinstatement and painful fines – then workers would have powerful incentives to organize and demand workplace fairness. (HT: Ben Sachs). Employers, meanwhile, would have powerful incentives to accede rather than face further organizing and actual unionization. In such cases, rather than first asking whether workers seem to want representation, then managing a campaign to determine whether they truly want it, and encouraging good faith bargaining, the Board would act a bit like a parent who tells two kids to share and work it out – or else.
This strikes me as particularly promising in the social media age, because social media both facilitates collective action and makes proof of collective action easier. Social media facilitates collective action in two ways. First, the informality and relative costlessness of social media deliberation can encourage collective action. Given the rash of recent cases on point, it seems likely that conversations preceding job actions increasingly occur through social media, in part since workers seem comfortable saying things on Facebook that they would probably never write on paper. This comfort may reflect that workers erroneously view Facebook wall posts as “private,” or it may reflect the fact that wall posts are so easy to write that they can feel like text messages and off-hand comments rather than legally significant statements.
Social media also facilitates collective action because it may help workers solve a coordination problem nicely represented by the so-called “assurance game,” a scenario – common in social movements – in which the best outcome for players is to match strategies, but where one matched strategy is more lucrative than the other. As Bill Eskridge argues, within social movements everyone “understands that joint action would benefit them all and would like to participate … but no one is inclined to participate unless everyone else … is [also] expected to participate.” Facebook and other social media can help workers’ solve this coordination problem by helping them express their frustrations about a workplace more organically and informally than through a petition, and to decide to act collectively only if others also want to do so.
This seems particularly true since employers may often lawfully prohibit workers from discussing unionization during working hours and on the employer’s property. For decades, this meant that workers had no way to deliberate except through mass off-site meetings, which themselves require significant resources to organize. But Facebook walls and pages are a very different matter: basically costless to create, they provide a space where workers may deliberate, collectively, from anywhere.
Finally, unlike casual conversations or even mass meetings, workers’ Facebook posts provide a written, permanent record of their deliberations and collective efforts. In two separate recent cases, Triple Play Sports Bar and Hispanics United of Buffalo, the Board held that employers violated the Act by terminating multiple workers for posting messages on a co-workers’ Facebook profile regarding, respectively, the employer’s alleged failure to withhold appropriate taxes, and a supervisor’s allegedly harsh criticisms. In neither case was a union involved, either before the dispute or during the litigation. In both cases, the workers’ Facebook wall postings were introduced as evidence of concerted activity, and reproduced in the opinion. This seems like a major strategic advantage for workers: rather than having to provide affidavits or depositions regarding what was said and when, they can simply point to the relevant Facebook pages, which include time stamps and individual signatures.
This proposal also intrigues me because it may accelerate, to some extent, the recent emergence of “workers’ centers,” organizations that provide legal and organizing assistance to workers but that do not seek formally to represent them in collective bargaining. This gets to a distinction between unions as institutions with separate legal personality from the workers they represent, and a unions as the workers’ own informal association. Many if not most U.S. unions today fall into the former category, and enjoy little organic support among workers. But historically, many of the most powerful unions have been democratic social movements as well as bargaining agents, and I would argue that any group of workers who are acting collectively are a “union” of sorts, regardless of whether they have achieved formal legal certification.
Of course, it is important not to overstate the benefits of such a reform. For one thing, unions as institutions play a critical role both in protecting their own members’ interests and in expanding legal protections available to workers more generally, and they can serve as a useful political counterweight to business interests. Workers should retain the ability to choose full-fledged unionization if they so desire. Moreover, for any increased remedies to have the effect of fostering workers’ self-organization, established unions or workers’ advocates – who today are often union-funded anyway – would likely need to provide logistical and legal assistance to workers. And the Board, of course, would have to be aggressive about pursuing such cases (as it already seems to be) and about exercising its new remedial powers. Nevertheless, given how social media stand to revolutionize organizing and collective action, and given the basic issues of democracy and distribution at stake, it strikes me as a project worthy of consideration.
February 20, 2012 at 8:25 pm
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Responses (2)
Dave Hoffman - February 21, 2012 at 1:33 pm
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).
James A.W. Shaw - February 22, 2012 at 10:20 am
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.
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