Volume 31

Worker Outbursts, Workplace Rules and a Resurgence of Worker Voice

by Mell Chhoy & Mark Gaston Pearce

What started as the Summer of Strikes,as unions across different industries flexed their muscles and rode a wave of revived pro-labor sentiment, has turned into a year marked by some of the largest labor disputes in more than two decades. In total, 2023 saw 451 labor strikes, some of which have resulted in historic victories and pay increases. Despite these victories, for many workers the prospect of going on strike or even participating in any kind of worker speech is still daunting. That might be because of how difficult it is to navigate what is or is not protected speech in the workplace. Between employers citing tension between compliance with the National Labor Relations Act and anti-discrimination statutes and enacting overbroad workplace rules, it is hard to know what to do. In addition, there is added complexity surrounding worker invocation of the Black Lives Matter Movement. This Article seeks to discuss the history and development of case law on protected concerted activity, consider how to reconcile the National Labor Relations Act with employer obligations to curtail discrimination, and introduce workplace rules as a mode favored by employers. Furthermore, this Article will deliberate on how recent decisions signal the National Labor Relations Boards impending treatment of worker speech against racism, namely worker invocation of Black Lives Matter in the workplace.

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