Michael M. Oswalt∞

Organizing is risky. Some workers join in and get fired, others face intimidation and drop out, while most–sensing the tension between legal rights and remedial realities–simply opt out. And more and more, the campaigns–and the campaigners–are getting sued. In From the Picket Line to the Courtroom, Professor Nicole Hallett does a good job covering this ground, and an even better job arguing for the logic of a labor organizing privilege to protect workers’ confidential campaign discussions in later litigation.1 This would, she argues, function as a key communicative “shield” that, although not sufficient to secure the free exercise of collective rights, is a “necessary condition” toward that goal.2 I think she understates that case.3 In practice, her proposal would be more than simply an evidentiary rule that also helps with workplace advocacy. By enhancing the sensitive person-to-person chemistry at play in initial campaign encounters, it represents a concrete and meaningful advance in modern organizing.4

To see why, consider some basic mobilization dynamics. Whether it is a colleague or a paid campaigner starting the conversation, organizing interactions are, at root, relational.5 Initial discussions often take place in a worker’s own home,6 a setting so sensitive that unlawful coercion is presumed if management tries to stop by.7 There, organizers classically make preliminary “assessments” of workers’ interest and leadership potential,8 but the evaluations go both ways.9 Workers are wondering if getting involved is worth their time, if this guest can be trusted, and, even so, what dangers lurk ahead. If these or any number of other potential anxieties rise to the surface in the form of a probing question, the query might, as Hallett suggests, revolve around litigation and particularly whether the communications at hand would be kept confidential.10 But really, it is probably going to be less specific and a lot more visceral: If something bad happens, would I be protected?

Since there is legitimate cause for concern,11 a lot rides on the answer to that question. The traditional reply goes something like this: Technically yes, but real protection comes from how your co-workers would fight back.12 It is a telling–and truthful–misdirection. Activists exist in a kind of liminal space–protected on paper, prepared for a delayed and unsatisfying justice in practice,13 and otherwise hoping that the campaign takes off so the boss does not dare retaliate. Front-line activism is thus the terrain of the truly brave, a fact with varying consequences for campaigns. While the ambitious OURWalmart and Fight for $15 campaigns have parlayed small, scattered strikes into impressive wage gains,14 other efforts, like a more traditional operation at Target, are summarily crushed once the company cracks open the anti-union playbook and the principal supporters are chased into hiding (or just fired).15 The rise of alternative or “alt-labor”16 brings the daring requirement into sharpest relief, with mobilizations centered around uniquely vulnerable populations like immigrants or those lacking employment protections entirely.17

But no matter the campaign, the reality is this: the chance to respond to the foundational question of protection with positive law unmediated by a “yes-but,” a “sort-of,” or an “it depends” is relationally additive in crucial ways. The difference between “Yes, it’s like talking to your doctor,” and “It’s complicated, because employers frequently don’t follow the law,” may be the difference between a supporter and someone who decides to sit it out.18

This is because the vast majority of employees, not necessarily inclined to challenge authority,19 will see through the “it’s complicated” hedge and start formulating an exit. But kicking the discussion off with a clear rule that acknowledges vulnerability and then does something definite about it drives a different result. While workers may not be thinking about lawsuits at this early stage, they will be wondering about the nature of the relationship with the organizer in front of them. The mere existence of a privilege conveys a sense that the law takes what is being communicated seriously and, by implication, so should they.20 So in a world where the privilege exists, it is not hard to envision an organizer or colleague opening a first encounter with a declaration like, “I’m here because the law says that our campaign, and what we are fighting for in our campaign, is so important that it’s our right to keep what we talk about private, even in court.” The statement is non-technical, affirming, inviting, and, most importantly, law-based in a way that does not overstate organizing realities and is not easily replicable under current doctrine. From there, what might otherwise have been an awkward few minutes standing on the porch might well turn into coffee on the couch.

The coffee is crucial because, as organizers know, courage does not generally just “happen.” It has to be created.21 There are emails to be sent, meetings to be arranged, lunches to be ordered, and small assertions of collective will to be practiced, all with the goal of gradually transitioning supporters from secluded church basements to sidewalks where, under management’s glare, the growing network of connections will be tested.22 Hallett’s proposal gets at the truth that all of those relationships start with a back-and-forth that today is necessarily defensive, but tomorrow does not have to be. An organizing privilege would let activists and organizers approach that crucial moment of mobilization from a position of legal strength for the very first time.

Of course, as Hallett acknowledges, none of this is an organizing “magic bullet.”23 A privilege does not fix labor doctrine. Whether corporate blow-back is subtle and difficult to prove or brazen and open-and-shut, the legal fixes are generally limited to back-pay, reinstatement, and a posted apology–months or years after the offense.24 Existence of an evidentiary safeguard or not, that reality is always a part of the discussion. But ultimately, Hallett’s proposal points to a bigger insight: yes, the law plays a broadly important role protecting–or failing to protect–the freedom to organize; but it can also facilitate–or fail to facilitate–the very decision to act in the first place.