I Have Filed Another Unfair Labor Practice Charge Against Bryan Johnson
Sending legal threats against protected activity violates the NLRA.
On March 21, Kirsten Grind published a piece at the New York Times about Bryan Johnson’s use of confidentiality rules to restrict what his current and former employees can say about Johnson and the companies he runs. Three of my clients participated in the story and thereby concertedly publicized their working conditions in a way that is protected by Section 7 of the National Labor Relations Act (“NLRA”).
After the story released, Johnson’s lawyers began sending legal threats against individuals that participated in the story. One of those threats, which was directed at former employee Taryn Southern, came yesterday from C. Bryan Wilson who works at the law firm Williams and Connolly.
After noting that Southern is subject to a non-disparagement clause in an employment separation agreement, Wilson proceeds to accuse her of violating that clause in a variety of indirect ways, instructs her to cease and desist posting about Johnson in these ways, and threatens to bring legal action against her. Wilson seems especially concerned that Southern may post a response to a video Johnson just released attacking Southern.
Perhaps the most bizarre accusation in the letter is that Southern breached her non-disparagement clause by posting an inspirational video about overcoming various life challenges, including cancer, job loss, and the dissolution of an engagement. The video makes no mention of Johnson but does say that Southern felt “suddenly alone” after the end of her engagement. Johnson apparently believes he is allowed to sue Southern for sharing these sorts of emotions even in the abstract without talking about Johnson. No one may know she was sad when her wedding was called off.
The letter also contains a less bizarre, but far more legally troubling, accusation that Southern breached her non-disparagement clause by criticizing non-disclosure agreements, also without ever mentioning Johnson.
From Wilson’s letter:
Ms. Southern also issued a series of posts on the so-called “Narcissist’s Playbook,” whereby she generally criticizes individuals and companies who enter into non-disclosure agreements and supposedly “attack” the victims and portray themselves as victims. She includes specific examples of Harvey Weinstein (who has gone to jail for sexual assault) and Sean “Diddy” Combs (who is under indictment for a series of sexual abuse allegations, including sex trafficking). Given that Ms. Southern so frequently comments about Mr. Johnson, there is little doubt she is attempting to equate him with these individuals and paint him in a false light. That sort of comparison is not only a violation of her non-disparagement agreement, but is deeply offensive.
Is it really the case that signing a non-disparagement agreement with your former employer means that you cannot criticize Harvey Weinstein and Sean “Diddy” Combs for using non-disclosure agreements? Surely not.
Of course, criticizing Weinstein and Diddy does not amount to disparaging Bryan Johnson. Even if it did amount to that, criticizing your former employer for subjecting employees to non-disclosure agreements is protected activity. Issuing legal threats against that activity, as Wilson’s letter does, violates Section 8(a)(1) of the NLRA.
If Johnson is uncomfortable with the fact that his use of non-disclosure agreements puts him in the same company as Weinstein and Combs, then he should reconsider how he conducts his employment relationships, not silence former employees who criticize the practice.
Read Wilson’s letter and my letter responding to Wilson below.
This Is the Problem With These Employment Practices
As I noted in my prior piece on this case, all of this just perfectly illustrates the problem with these kinds of restrictive covenants — confidentiality, non-disparagement, and non-disclosure rules to name a few — that have proliferated across the corporate sector. They give employers the ability to intimidate workers for the rest of their lives and prevent them from speaking out about their working conditions.
The purpose of the legal letter discussed above is to frighten people like Southern away from saying anything at all about her former employer, including things she has a right to say under federal law. Most people are not willing to endure legal threats like that and subject themselves to lawsuits, even if they are in the right and will prevail. The mere existence of these kinds of rules therefore coerces workers in the exercise of their rights.
The Johnson case is an especially disgusting example of it because Johnson has, many times, publicly criticized and disparaged Southern, including mostly recently in a video posted on March 21. But when Southern responds or even hints that she is going to respond, he has his lawyers hound her into silence.
Public Support Welcome
I am sharing all of this here because this is fundamentally a labor dispute, not a legal dispute. Bryan Johnson was Taryn Southern’s boss for four years and he is relying on non-disparagement and confidentiality rules contained in an employment severance agreement to restrict her speech, not just about him, but about non-disclosure agreements more generally. Johnson continues to subject other employees to these kinds of rules, including the employees that Southern is working with to expose these practices. All of this is illegal, but Johnson does it anyways.
Too many people are accustomed to the idea that, whenever employers and employees get into a dispute with one another, that’s a matter for lawyers to sort out. But this is not how the National Labor Relations Act sees it. Labor disputes are a public affair where involved parties can and should solicit public support for their cause. In that vein, if you have a problem with the way Bryan Johnson treats his employees and wish that he’d stop using restrictive contracts and intimidation to undermine their rights, by all means, let him know. He posts on Twitter at @bryan_johnson.