What is Corporate America Trying to Hide?

Published October 17th, 2018 -  - 10.17.1856


Louis Brandeis famously wrote “publicity is justly recommended as a remedy for social and industrial diseases.  Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”  We now live in a world where citizens, armed with cell phone cameras, are able to hold renegade police officers accountable, if not always in the court of law, at least in the court of public opinion.  Yet, as Elizabeth Anderson recounts in her book, Private Government, in addition to the government students learn about in school, we have a parallel system of government in the workplace where the sun never shines.  It’s time we did something about that.

There are three different ways that big corporations keep the sunlight from shining on workplaces: employers often impose overbroad confidentiality rules and make workers sign nondisclosure agreements; they prohibit workers from recording anything that happens at work; and they channel disputes away from public courts and into private arbitration.

If you read through employee handbooks, you will often come across a vague policy prohibiting disclosure of “confidential business information.”  Some employers have valid reasons for these policies – for instance, law firms have a duty to protect information about their clients, and some businesses have the equivalent of “secret formulas.”  But many businesses have no need for such secrecy, and instead they use these policies to squelch the disclosure of embarrassing information.  Nondisclosure agreements are often included as part of the settlement of litigation, but as coverage of Donald Trump’s business dealings has revealed, some employers routinely require current employees to sign nondisclosure agreements.  The effect of these agreements is that workers risk being sued if they talk to reporters about wrongdoing at their workplace.

While a nondisclosure agreement bars the dissemination of evidence, a ban on video and audio recording is even more worrisome because it stops workers from gathering evidence of wrongdoing in the first place. Video cameras have become so ubiquitous in our society that groups like the ACLU have raised legitimate concerns as to whether video surveillance has gone too far.  But when elected officials or candidates for office are caught saying something at a fundraiser they might not tell a wider audience, we are happy to have the video footage.  In fact, we’re so used to seeing incidents captured on video that there is a tendency to think that if there is no video, then the incident must not have happened.

In 2015, the NLRB held that audio and video recording in the workplace is protected by the National Labor Relations Act when workers are acting for their mutual aid and protection.  In a subsequent case, the Board gave the following examples of protected conduct:  “documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use.”  But, then in 2017, the Trump appointees on the NLRB overruled the earlier cases and announced that the Board will generally uphold no camera rules.  The NLRB’s General Counsel then issued a guidance memo saying that from now on the Board will not challenge employer rules that bar workers from recording conversations, phone calls, images, or company meetings.  So, in other words, workers can now be barred from obtaining the best evidence of illegal employer threats.

If the NLRB had considered its own experience, it would understand what is lost when workers are denied the chance to record the boss’s words.  There are many NLRB cases where workers assert that managers threatened them in captive audience meetings, and the company defends itself by pulling out a script that was carefully vetted by its lawyer.  These cases turn on whether the person delivering the speech deviated from the script, and on whether to credit the workers’ often conflicting memories of the exact words the manager used.  In an era when employers are utilizing state of the art technology to set staffing levels and to monitor performance, it’s hard to understand why workers should be relegated to using pen and paper to record what happens at the workplace.  Beyond the need to gather evidence of unlawful acts, allowing more recording in the workplace would inhibit some of the worst bullying that goes on now behind closed doors.  It can be shocking to hear how bosses sometimes talk to workers.  I was involved in a case where a worker confronted a manger who had opened the worker’s paycheck envelope.  The worker asked the manager what gave him the right to do that, and the manager responded, “I have all the rights.”  Then, the manager suspended the worker for insubordination.

The final way that employers are keeping workplaces in the dark is by forcing employment disputes into private arbitration.  The Supreme Court recently upheld this practice in Epic Systems Corp. v. Lewis.  One of the arbitration agreements at issue in that case provided for confidentiality for “all aspects of the proceeding.”  When cases go to court, documents and testimony become part of the public record.  A search of those public records may reveal that the company has long been award of a problem, yet has failed to address it.  And, reporters checking the court dockets can get tips about issues worth looking into.

Earlier this year, a remarkable bipartisan coalition of Attorneys General from every state wrote a letter to Congressional leaders urging Congress to end mandatory arbitration for workplace victims of sexual harassment.  The letter argued that the secrecy requirements of many arbitration provisions “prevent[] other persons similarly situated from learning of the harassment claims so that they too might pursue relief.” The letter further asserts that channeling these disputes into confidential arbitration proceedings encourages a “culture of silence that protects perpetrators at the cost of their victims.”  The Attorneys General are right, but their critique should not be limited to claims of sexual harassment.  The same principles should apply to all workplace claims, whether they involve race discrimination, unequal pay, requiring off-the-clock work, or retaliation for whistleblowing.

If we are going to have a democratic society, we need to bring the core elements of democracy into the workplace.  The same way that our government would not function properly without the First Amendment and freedom of information laws, we need to demand the right to know what goes on in the dark corners of our workplaces.

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