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Warren Campaign Faces Unfair Labor Charge by Sanders Supporter

Aug. 14, 2019, 8:19 PM

Sen. Elizabeth Warren’s 2020 presidential campaign is facing an unfair labor practice charge alleging its confidentiality agreement with staffers unlawfully prevents them from speaking out on workplace issues.

The Aug. 13 challenge to the campaign’s non-disparagement clause was filed by Jason Legg, a tenant’s rights attorney in Denver, Colo., who supports Sen. Bernie Sanders (I-Vt.) for the Democratic nomination. The National Labor Relations Board accepts charges even if the filer isn’t an employee of the organization alleged to be violating federal labor laws.

At least three Democratic campaign offices have unionized—starting with Sanders in March—and are working towards collective bargaining contracts for staff, a new development in presidential campaign politics. Warren’s campaign is the second to be hit with an NLRB charge, after an unidentified former Sanders staffer in July accused campaign officials of unlawful retaliation.

The filing against the Warren campaign by a non-employee who supports one of the candidate’s challengers suggests that both unionized and non-union campaign operations could continue to deal with complaints over issues that are fairly novel in the political campaign space, where unpaid volunteers, confidentiality, and long hours are the norm. President Donald Trump’s 2016 campaign faced claims of labor violations that were dismissed by the NLRB in early 2018.

Legg told Bloomberg Law that he hopes his charge spurs changes in the Warren campaign’s employment practices. He is targeting the campaign’s reported use of unpaid fellowships, as well as non-disparagement agreements that Legg says could stifle staffers’ labor rights.

“I can’t say I’m not at all politically motivated, I’m a Sanders supporter and Warren’s my second choice, so I guess this is one way to show the contrast,” Legg said. The reported fellowship program “is not consistent with everything else Warren says she believes and fights for” so “I hope people think about the substance of the charge rather than my interest” in supporting a different candidate, he said.

The Warren campaign declined to comment.

Labor Board on the Case

The NLRB will investigate the charge and issue a government-backed complaint if it finds merit to the allegations.

Legg says in the charge that the Warren campaign requires employees to not “make any statement that may impair or adversely affect the goodwill or reputation of the Organization.”

“Such a broad-sweeping restriction on criticism of an employer has been described as flying ‘in the teeth’” of the National Labor Relations Act, Legg writes, citing a 2016 decision by the U.S. Court of Appeals for the District of Columbia Circuit.

The NLRB generally evaluates whether these types of requirements can be justified by legitimate business reasons, or instead are so broad that they prevent employees entirely from discussing their working conditions—a right most private-sector employees have under the NLRA.

Political campaigns are generally believed to have a stronger argument than other employers for requiring confidentiality, given the nature of the jobs involved.

General non-disclosure or confidentiality agreements are falling out of favor lately. But in recent years the NLRB has tended to find non-disparagement clauses to be lawful more often than not, according to a Bloomberg Law analyis.

Legg told Bloomberg Law he has a family member who took on significant debt as a volunteer in a political campaign. He also cited changes that the Sanders campaign said it would make in response to concerns from its employee union.

“Maybe I’m looking at this through rose-colored glassed, but if this gets good change—like what happened when Sanders cut down on hours to make sure wages aren’t being diluted—then that’d be a good thing,” Legg said.

—With assistance from Andrew Wallender

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com