Thursday, November 5, 2009

Griffith on The NLRA Defamation Defense

Griffith Kati Griffith (Cornell - ILR) has just posted on SSRN her article in the American University Law Review: The NLRA Defamation Defense: Doomed Dinosaur or Diamond in the Rough?

Here is the abstract:

With the National Labor Relations Act of 1935 (NLRA), Congress intended to provide private-sector employees with the right to organize collectively for their mutual aid and protection in the workplace. However, the NLRA faces a tsunami of criticism, much of which highlights its inadequacies with respect to protecting collective activity among employees. In light of the NLRA’s myriad limitations, some scholars have developed promising proposals to identify new legal bases for protecting collective activity among employees outside of the NLRA.

This Article redirects our gaze back to the NLRA’s potential to protect some forms of collective activity. It elaborates the NLRA’s underappreciated role as a defense in state defamation lawsuits against worker organizations and employees engaging in collective activity. The defense requires courts to employ a defamation-defendant-friendly heightened standard of proof to defamation claims that arise in the labor context. The analysis shows that, while many aspects of the NLRA are beleaguered and out of step with modern workplace relations, the NLRA defamation defense has some potential to remain relevant in the context of new challenges, new worker organizations, and new worker organizing strategies. It cautions against the narrowing the NLRA’s preemption doctrine in such a way that endangers this underappreciated protection of collective activity. 

I have had the privilege of reading Kati's piece. It is extremely well written, and even though it sides with a borader preemption theory under the NLRA than I am comfortable with, she makes a most persuasive argument.  For those interested in keeping the emphasis on NLRA reform rather than exploring non-NLRA models, this is a must-read piece.


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While I understand the Professor's point-- it is terribly novel-- I think the sword is double-edged: employers very often publish defamatory statements about workers, and they often have a much wider (and more captive) audience. I was myself the victim of an employer's well-publicized lies-- after having been fired for organizing, a particularly vicious company vice-president libelously claimed in a letter mailed to every worker that I vandalized her home. I was instantly labeled a thug. When I, as a law student, sued her and the company, I faced the 'constitutional malice' standard, which I was able to meet, though barely.

In Time, Inc. v. Firestone (1976) 424 U.S. 448, 456 the Court held that presumptively imposing the constitutional actual malice standard on all defamation plaintiffs would result in a “substantial depreciation” of protection from defamation in ways not required by the First Amendment. Likewise, I suggest that actual malice is an unconstitutional impediment when presumptively applied to all workers who have been victimized by their employers. The actual malice standard reduces reputational security and unfairly creates an incentive for the powerful Defendants to continue defaming their workers. By applying the actual malice standard, the law impermissibly forces workers to chose between two rights: the right to organize for mutual aid and protection and the right to enjoy a good reputation.

Let the Professor ruminate on that.

Posted by: Brendan | Nov 5, 2009 9:58:01 PM

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