A Federal Right To Online Drama In the Workplace?

By Walter Olson of Cato.

"According to a widely discussed article by Ryan Grim in The Intercept, staff meltdowns over social justice issues have lately been paralyzing some well‐​known progressive organizations. Meanwhile publications like the Washington Post have become the scene of pitched public social media battles in which writers and editors call each other out publicly over purported insensitivity or privilege. If some Biden administration officials have their way, dramas like these may soon be coming to a workplace like yours.

It’s all due to a little‐​known and still‐​unsettled portion of the New Deal‐​era Wagner Act, more formally the National Labor Relations Act. While most of us may think of the NLRA as a law concerning collective bargaining and union organizing, it actually reaches further than that in language making it a breach of federal law for employers to retaliate against workers for certain “concerted activity” whether or not a union or organizers are present. HR Dive recently quoted Joseph Beachboard, managing director at law firm Ogletree Deakins, as noting that the 1935 law

protects workers’ rights to engage in concerted activity for mutual aid or protection. Historically, that referred to employees working together to secure better wages or hours, “but we have a new sheriff in town at the National Labor Relations Board, and her name is Jennifer Abruzzo,” Beachboard said. Abruzzo is aiming to expand the concept to include issues of social justice, economic fairness, racial justice and more, he continued.

Ambitious plans to use the Board’s “concerted activity” authority are not emerging entirely out of left field, if that’s the right figure of speech. As I wrote four years ago in this space,

some labor movement advocates have hoped to use this catchall language as the future engine by which the NLRB would gain power to impose major new regulatory requirements at non‐​union workplaces — all sorts of on‐ and off‐​job interactions between colleagues might be interpreted as concerted activity if you squint at them the right way.

The idea here is that that employee unrest on “issues of social justice, economic fairness, racial justice” and more can be interpreted as “concerted activity” so long as the vocal complainer teams up (or perhaps just intends to team up?) with at least one co‐​thinker in the workplace. Once you assume that, you pave the way for a future Board to find employers liable for violating federal labor law if they put down the latest Slack social‐​justice mutiny, announce a policy against letting divisive national issues into the office, or discipline the clique that has pushed a public campaign to get a manager or colleague fired.

I noted last time that it’s by no means clear that the Supreme Court as currently constituted would agree to read the “concerted activity” language in a broad enough way to authorize such a vast power grab over workplace interactions. It’s also possible that First Amendment arguments would cut against some interpretations of a broad regulation. But the NLRB is in a position to put employers through years of grief before they could hope to bring such arguments to a final Supreme Court ruling. Let’s hope it doesn’t try to do that."