Punching In: Trump, Musk’s Labor Threats Stir Social Media Clash

Monday morning musings for workplace watchers.

ULPs in Online Spaces|Persuader Disclosures

Ian Kullgren: In case you missed it last week, United Auto Workers accused Donald Trump and Elon Musk of violating federal labor law when the former president, in an interview with Musk on X, mused about firing workers for going on strike. That exchange has raised questions about the extent to which the National Labor Relations Board can regulate speech on social media.

The comments would almost certainly be a violation if uttered in the workplace, given their potential to chill protected speech. But can the board ding an employer for comments made not in the workplace at all, on a completely separate, online platform?

Turns out, yes.

The NLRB first broached the social media issue in 2011, in a case involving a Connecticut ambulance company. The dispute centered on an employee who was fired for a disparaging comment about her boss on a Facebook post limited to only her friends. The worker previously said she was threatened for requesting union representation in a meeting.

The board eventually reached a settlementwith the company, which agreed to narrow its speech policy.

The NLRB took up the issue again in 2014, finding that a simple “like” could constitute protected concerted activity. In that case, an employee of a sports bar showed support for a coworker who had expressed outrage over their bosses’ tax withholding efforts. The decision was affirmed by the Second Circuit.

Attorneys on both management and union-sides told PI it was clear that comments made on X, the platform formerly known as Twitter, could violate the National Labor Relations Act.

“These online spaces—and also interviews and cable and that sort of thing—are extensions of the water cooler at work,” said Seth Goldstein, a labor attorney with Julien, Mirer, Singla and Goldstein LLP who has represented the Amazon Labor Union.

The board further refined its social media doctrine in 2021, saying that company policies must be narrowly tailored to advance the employer’s goal without interfering with workers’ rights.

The bottom line: Comments made on social media are fair game in workplace disputes. Employers beware.

President Donald Trump greets Elon Musk, SpaceX and Tesla CEO at the White House in 2017

BRENDAN SMIALOWSKI/AFP via Getty Images

Rebecca Rainey: New research finds that employers and labor management consultants have largely failed to submit required annual disclosures on their anti-union activity for 2023, underscoring concerns about the US Labor Department’s ability to ensure compliance with its labor disclosure laws.

The DOL’s Office of Labor Management Standards enforces parts of the Labor-Management Reporting and Disclosure Act of 1959, which requires employers and labor relations consultants to file annual reports when they attempt to persuade workers about unionization. Unions are also required to submit annual reports detailing their bylaws, spending, and other information.

As of July 31, only a third of employers who were required to submit an LM-10 form for 2023—which details a company’s anti-union spending and activities—had done so, an analysis from the nonprofit watchdog organization LaborLab found.

Only 40% of labor management consultants that were paid by a company to persuade workers about unionization had filed the required detailed payment LM-21 reports in 2023, according to the research.

The findings echo the “significant concerns of underreporting” by employers and consultants raised by the DOL’s inspector general in May, who noted a similar trend of non-compliance from 2019 to 2023.

Without better data, DOL’s internal watchdog and LaborLaw founder Bob Funk warn that workers may not be able to make informed decisions about joining a union.

Funk said the nonprofit has filed complaints with OLMS to flag the missing information, but said they’ve had a “disappointing” response from the office when pointing out deficiencies in the past.

“We are frustrated by the level of follow through we are seeing from an agency charged with ensuring companies can’t hide their dirty spending on union-busting and other coercive tactics,” Funk told PI. “This critical information must be secured by OLMS in order to fulfill its obligations under the law to workers and the public.”

The report calls on the DOL to ensure its providing “at least the same” resources and effort on ensuring employers and consultants are complying with the LMRDA, as it does for unions.

In response to the data, OLMS Director Jeffrey Freund said he’s committed to taking enforcement of persuader reporting “as seriously as labor union reporting” and noted the agency has increased the number of reports it’s collected.

The agency also recently created a new enforcement team with four investigators focused specifically on employers and consultants, Freund said in a statement.

The investigators will use “enforcement authority, including subpoena enforcement,” as part of the effort he said, and are tasked with “reminding consultants - who are presumed to know their reporting obligations - that there are criminal penalties for willful violations.”

The Biden administration also has made some recent efforts to expand the required disclosures employers must make on their annual forms. A pending proposal at the White House budget office could require companies to report “any portion of pay” earned by supervisors who have engaged in activity meant to persuade workers about union activities.

The agency has taken Starbucks and Amazon to court for information on payments to reimburse their employees for travel to work sites to discuss unionization with other workers, which the companies argued went beyond the disclosures required under the LMRDA.

A federal judge sided with the DOL in both cases.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.