Planting, Nurturing, and Protecting the Seeds of Workplace Democracy

We should never forget, at any time, the footholds of our democracy—the right to a representative governing structure, the right to free speech and assembly, the right to due process, and the freedom from arbitrary action, among other rights and freedoms. Yet, too many of us accept that, when we walk through the (physical or virtual) door of our workplace, a place where we spend a significant portion of our waking hours, we forfeit these rights and freedoms as a commodity, subject to the whims of employers who pay for our labor.

But over a hundred years ago, Congress declared in the Clayton Act that “[t]he labor of a human being is not a commodity or an article of commerce.” And soon thereafter, Congress passed the National Labor Relations Act (NLRA), the primary U.S. law that I am congressionally mandated to enforce, which exists to protect the rights of workers to have a democratic voice in their workplace. It does so by protecting workers’ rights to organize to freely choose representatives and improve workplaces and collectively bargain with employers over wages, benefits, and other working conditions.

The Supreme Court would later characterize these rights as “fundamental” in its 1937 case upholding the NLRA, explaining that “[e]mployees have as clear a right to organize and select their representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents.” NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937). These are rights that are also considered fundamental human rights by the International Labour Organization and the United Nations. And, in fact, these rights are considered “enabling rights,” as they empower workers to exercise other rights and fully participate in democracy.

In order to effectively encourage and protect the right to collectively bargain, Congress understood that the initial stages (or the seeds) for such also have to be protected. For this reason, it drafted Section 7 of the NLRA to include the predicates to collective bargaining—the right to self-organization; to form, join, or assist labor organizations; and to choose representatives and otherwise act together in order to start the collective bargaining process. Section 7 of the NLRA also protects employees’ rights to engage in concerted activities for mutual aid or protection in the workplace, authorizing workers to inspire, help, and protect one another—to be in solidarity—in order to improve their lot as employees, which also inures to the benefit of businesses and the overall global community. 

As noted, the NLRA protects the rights of workers to engage in a broad swath of activity, which quite often overlaps with the rights afforded employees under other statutes enforced by other agencies. Thus, protecting this activity is critical to the functioning of an overall system in which workers can attain greater equality of bargaining power. Workers’ protected activities have included sharing how much money they make with each other or the public; walking out of a workplace because it is too cold or too hot; signing a joint letter protesting a wage cut; and criticizing a supervisor’s workplace conduct on social media. Employees have also been found to have engaged in protected activity when talking to the media about being harassed by customers; wearing Black Lives Matter buttons in solidarity and in protest of conditions; making a YouTube video complaining of hazardous conditions; signing a petition demanding better work-related living conditions and hours, and reimbursement of travel costs to the United States; asking a colleague to act as a witness in a sexual harassment proceeding; requesting a coworker to join a wage theft lawsuit; and many other similar activities.

The way in which the NLRA protects this kind of activity is by prohibiting a wide range of conduct that interferes with, restrains, or coerces employees from engaging in it. This includes threats, interrogation, promises, and surveillance of protected activity. But it can also include workplace rules that chill workers from exercising their rights. For example, a confidentiality or nondisclosure rule that employees would reasonably read to prohibit them from sharing information about their wages or working conditions with one another, the government, tribunals, or third parties interferes with employees engaging in that activity as they could be subject to discipline or discharge for violating these overbroad rules. Likewise, severance agreements that require employees to keep quiet about their working conditions after leaving their employer necessarily interfere with employees’ rights by forcing workers to waive them in order to get whatever incentives are being offered.

And as I have recently explained, non-compete agreements also chill employees from engaging in virtually all types of protected activity in the workplace, such as concertedly threatening to resign, carrying out such threats, and soliciting others to do the same by scattering former employees to the four winds, breaking social ties that are predicates for the communication and solidarity on which collective action relies; increasing the economic costs to employees who are unlawfully discharged for engaged in protected activity; and undermining employees’ ability to replace lost income in the context of strikes, lockouts, and other labor disputes. I believe these agreements are a fundamental threat to the fulfillment of the act’s purpose of equalizing bargaining power between employers and employees. NLRB GC Memorandum 23-08, Non-Compete Agreements that Violate the National Labor Relations Act, May 30, 2023.

The ubiquitous use of artificial intelligence implicates many interests, including anti-discrimination (e.g., biases in hiring and promotions), antitrust and consumer protection (e.g., wage fixing, no-poach, lack of transparency and arbitrariness), privacy (e.g., data sharing and selling), health and safety (e.g., repetitive motions and ability to stop work to avoid harm), and labor (e.g., effects on protected concerted activities and duties to bargain). From my labor perch, there’s a real potential for omnipresent surveillance and other algorithmic-management tools, which are becoming widespread in workplaces, to significantly impair or negate employees’ ability to engage in protected activity. Technology can track movements, listen to conversations, record keystrokes, see what workers’ eyes are viewing, recognize voices, and so much more—and this can and is being done beyond work times and beyond work areas.

So, it is crucial that we restrict intrusive electronic monitoring and abusive breakneck paces of work set by automated management, as it may severely limit or completely prevent employees from engaging in protected conversations about unionization or terms and conditions of employment that are a necessary precursor to group action. If the surveillance extends to break times and nonwork areas, or if excessive workloads prevent workers from taking their breaks together or at all, they may be unable to engage in solicitation or distribution of information that relates to their workplace interests. And surveillance reaching beyond the workplace—or the use of technology that makes employees reasonably fear such far-reaching surveillance—may prevent employees from exercising their Section 7 rights altogether anywhere. NLRB GC Memorandum 23-02, Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights, Oct. 31, 2022.