NLRB judge declares non-compete clause is an unfair labor practice

In Germany, there are certain kinds of questions that are not permissible on an employment questionnaire, for example asking whether a candidate is pregnant or plans on having children, union affiliation, etc. However, these questions are often included in the questionnaire and not answering them would provide sufficient signal to the employer and the only remedy would be to sue the employer. So it's explictly permitted to lie in the answer, rendering the questions useless.

I expect a similar line of reasoning applying to this case: The question is about a protected, legal activity which is nonetheless undesirable for certain employers. Asking the question and requiring a truthful answer would undermine the protected, legal activity. Hence an effective remedy is explicitly allowing to lie in the response.

I'm curious what the logic is to justify lying about employment history in order to salt a union.

Being from outside the US, I'd never heard this term before, and actually in my country it's rare that you join a company and aren't given all the documentation by HR about what unions you can join on the first day.

But anyway, when I googled this term, from the wikipedia article:

The tactic is often discussed in the United States because under US law unions may be prohibited from talking with workers in the workplace and salting is one of the few legal strategies that allow union organizers to talk with workers.

It'd seem them that at least one reason why they might explicitly protect the right for union members to lie about their employment history when trying to join a company for the explicit reason of salting is that they would also be / have been an employee of a union, and disclosing that could well get them deselected from consideration for the role.

Presumably the company will still be responsible for their own due diligence in checking that the potential hire had all the necessary qualifications to legally carry out the work, and might well discover the lie in that process. Presumably they could then also terminate the employee for that reason at that point because they couldn't actually legally carry out the job duties, but equally I'd imagine if they uncovered a lie which could be shown (presumably in court) to be for the purpose of salting, but they were otherwise legally able to perform the work, then the company couldn't fire them.

Here’s a case where calling the boss names is protected converted activity.

https://www.nlrbedge.com/p/wall-street-journal-is-mad-at-wel...

IANAL, but as far as I know, the line is "intent", and courts of law are empowered to infer intent from actions.

things that could get someone fired in completely union-unrelated situations, are actually protected if done in service of unionization?

If you preferentially fire union organizers and preferentially ignore the infractions of non-union-members, then yes.

Consider the alternative where employers can fire you for lying about your employment history. Once you’ve done some union organizing, you’d be potentially unhireable.

ETA: Here's the relevant part of the judicial decision in this case:

None of these employees [who were fired for lying and used to claim precedent in this case] are an appropriate comparator for McClure, who was never accused of stealing, violating traffic laws, or other criminal conduct. And, even if Respondent could show that the other employees were fired just for lying, and not for the underlying serious misconduct, Respondent could not use that to justify firing McClure because they were all accused of lying about conduct that Respondent could lawfully consider in hiring or firing them. In contrast, McClure lied about his history of working for union employers. Because Respondent could not refuse to hire McClure because of his union background, his lie about working for Deem can’t be used to justify firing him.

Maybe it's specifically in the context of unions and nothing else?

If you lie about your work experience, it turns out you can't program Rust, then you can get fired for that.

But if you lie about never having been part of a union before, and it turns out you have been part of a union before, then you can't get fired for that.

The context here is salting so it would likely be omitting prior employment or education/training. I personally think this is completely reasonable in all cases.

Non-salting example: over a decade ago I omitted an entire year of professional experience as a PHP developer when trying to get hired as a Python engineer, because I didn’t want to get pigeon-holed as “PHP dev who can maintain our crummy legacy PHP codebase nobody wants to touch”.

Anyway it would be extremely problematic if employers were entitled to full and complete honesty from applicants but had no equivalent obligations from their side. If businesses had the choice they’d pick the status quo over mutual transparency.

According to the ruling, yes, given the public interest as stated, in protecting the right to organise.

This is broadly similar in principle to laws like those in many places allowing one to not disclose spent criminal convictions.

Care to elaborate? I can't think of any argument for this position.

No.

You can lie about union organizing because an employer is not allowed to use whether or not you are a union organizer when making hiring or firing decisions.

If you lie about something that the employer is allowed to use in making those decisions they can fire you.

I'd imagine it'd go to court and the union would have to testify that this is the case, and also have documentary evidence to back it up.

Inventing qualifications is probably still not legal.

Now, not mentioning a job in the past, or some details of it, are a different case.

So, all you have to do to completely lie on your resume and keep employed, is pretend to be union organizing?

You can lie about your union involvement. You can't make up qualifications you don't have.

Personally, I think "denying" is also bad, while "omitting" is fine.

Instead, I think it's more reasonable to have exceptions for certain protected activities, such as salting. It's in the same category as sexual orientation for me; employers should not be allowed to ask or make decisions based on it, so if you're asked as an employee, you shouldn't have any obligation to tell the truth.

I don't think that's what people were surprised about. Just speaking for myself, I was originally surprised by the statement "lying about your employment history to salt is also protected activity". After all, it's seems to make perfect sense that I can be fired for lying on my resume.

The bit that I didn't understand, and that some of the comments here cleared up, is that only lying about the employment pieces that specifically relate to past work as a union organizer are the things that are protected activity.

In court it would be tested whether your deceit is actually relevant to the salting. Faking an entire resume to get into a place where you can't do the work isn't likely to fly, hiding your time working for a union by claiming you did first line customer support might.

I can see why HR won't provide performance references. But I'm talking about if I'm a star employee and want to leave, I ask my boss if they'll write me a recommendation letter or if I can list them as a positive reference on my apps, they aren't allowed to by the company and may even get fired for it.

Can you provide an example article or case law when this happened?

Again, that sounds like a good reason, but it’s not the reason, and it would be easy to solve. The reason is wage suppression.

There's always a reference.

It doesn't have to be the boss; it could be a co-worker. Generally written, it is hard to get, but almost always available with a phone call after hours.

Asking the person, "Would you rehire this person?" or "Would you like to work with this person?" has a 95% answer rate and says everything.

If the prospect can't connect you with a phone call to one of their co-workers, that tells us what we need to know.

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Mostly no, because almost no employer will provide them.

Yeah, I don't think it should be required, but I think policies banning managers from writing letters are also wrong.

As ever I feel the need to remind people that we live in a capitalist economy, not a laborist one.

And it should stay that way forever because...?

Labor is human capital, and in a free market, people should be free to deploy their human capital wherever they want to get maximum ROI.

Regulations to protect labor aren’t really what capital would call a free market

I think thats backwards - it is only by power of law and courts that the contract can be enforced.

We don’t get our courts to enforce what isn’t a valid commercial interest - you can’t can’t have a contract of sorts

‘if you leave this job in New York you must leave New York and not come back for 5 years’

Alternatively

‘If you leave this job you must not have sex for 1 year’ would not fly either

So we already are making decision for what is allowed in the contract. And if you could put anything you want into contract, there would be many terrible contacts that make leaving your job too painfull, turning it into slavery-lite.

Importantly compared to almost all non-competes: Garden Leave implies you are being paid to not work.

It's pretty good for say, 3-6 months.

Long enough to reset, not worry too much about health coverage, and if timed right.. not miss out on a bonus cycle. It's also short enough that you can interview and get a job offer from a company willing to wait for you. Often you can negotiate a signing bonus at the new shop to make up for compensation you may lose due to deferral or bonus cycle.

The firms trying to force 18 month terms are also some of the highest turnover shops. Arguably you'd need to demand a 50-75% bump to take the role since on the way out the door you are going to miss out on 1-2 bonus cycles. The term is so long you likely need to quit before finding a new job too, and then kick off interviewing in the last 6 months.

That is true now due to the FTC ban on non-competes, but it was not true before that. The enforceability varied widely from state to state. Here's a table showing how it was in 2016 [1]. My guess is that your corporate law professor was talking about enforceability in the specific state you were in.

Also, most I've seen were required to be signed when employment began, not when employment ended.

[1] https://beckreedriden.com/50-state-noncompete-chart-2/

Fair. Something that is common practice but not going to hold up in court are uhh quasi-legal.

A problem is that if you are moving within an industry that enforces non-competes they all generally respect each others for fear of invalidating their own. They also tend to know the terms of each others contracts as well so you can't exactly bluff your way through.

So your new prospective employer will not do anything that is seen as soliciting you to break the prior contract.

Also at the low end it works especially well because you won't take the risk of court / having to hire a lawyer.

One of the issues is that many small firms are just going to pass if you have a non-compete. I guess you can lie and just say you don't but that's probably not a great way to start a new employment relationship. I worked for a very small firm and someone having a non-compete was just a hard pass from our COO. Just too much risk.

What makes them anti-free-market in my mind is.. monopsony.

Non-competes are a feature of monopsony because in a given industry all the buyers of labor enforce them. This is a concept related to monopoly, but on the demand rather than supply side. Even bad old USA takes (an increasing) hard line on monopolies.

the administrative state. The overturn of the bump stock ban is just the beginning

It's not even sort of the beginning. The conservative stance on the role of the Supreme Court has been pretty clear for a long time and this court has been ruling that way for a few years now.

Their theory is that Congress makes the laws, the Executive branch enforces them, and the Judicial branch interprets. The precedent that they've overturned has consistently been in line with this logic: they've said over and over again that if America wants a law then Congress should create it, rather than relying on executive rulemaking that gets overturned every time an administration changes or on unelected judges legislating from the bench.

Whether or not you agree with them on specific issues, I think we can all agree that the current status quo where worker rights take dramatic swings every time a new party takes control of the presidency is a ridiculous situation that needs to be fixed. I want a nation of laws, not a nation of administrative rules that have a 4-year shelf life.

That's exactly what I was wondering, thank you!

Not to be too pedantic, but ALJs are technically Article I judges (or more precisely judges over Article I tribunals). The Constitution lists two different sources of judicial power, the first in Article I section 8 and the second in Article III. Article III courts have judges with life tenure, protection of salaries and are subject to review only by other Article III appeals courts including the Supreme Court. Article I courts have judges with fixed terms of office, and Congress can cut their salaries. All Article I courts are subject to review by Article III courts.

There's an open controversy about how much deference the Article I courts in administrative agencies are owed by Article III courts, arising mostly from Chevron v NRDC. That decision requires Article III courts to defer to Article I courts' interpretations of their statutes and even their administrative rules except in extreme circumstances. Several justices on the Supreme Court find Chevron deference problematic, but it currently is the law of the land.

Can't speak to that explicitly but the advice I was given by 2 solicitors on the topic was "they're not enforceable and won't stand up in court, they can't stop you earning a living with your skills"

No, it implies that's what legislators negotiated between different factions, or between legislators and lobbyists, or were outright bribed by lobbyists to go with.

Ie, they wanted 1 month, but lobbyists wanted 6 months, legislators pushed back, and everyone compromised at 3.

Employees won’t tolerate that due to not being able to get mortgages? Our megacorp recently upped base salaries due to this.

Thanks for the link. But I'm not going to spend all day reading those decisions (the language is so legalese it's hard to parse what they're talking about). I'll just say that every time the NLRB is in the news, I've never read of a case where they ruled for the business.

If you want to point to a decision in particular, I'll take a look at it.

you made a stupid comment meant to insinuate something sinister

It's a fair question.