I Have Filed Unfair Labor Practice Charges Against Cult Leader Bentinho Massaro

Massaro uses illegal employment agreements to silence people.

According to Rolling Stone, Bentinho Massaro is a peculiar New Age guru that leads a flock of followers seeking spiritual guidance. A number of former followers of Massaro, including those who have worked in his organizations, have accused him of presiding over a cult that runs on typical cult mechanisms of abuse and control.

Massaro also relies upon at least one atypical method of control for a cult: employment agreements full of restrictive rules that violate the National Labor Relations Act (NLRA).

Recently, I was able to acquire a copy of one of these employment agreements and found that it contained several confidentiality rules, a media contact rule, a non-disparagement rule, a no-recording/no-camera rule, and a mandatory arbitration rule that are all facially illegal under the standard established by the National Labor Relations Board’s (NLRB) recent Stericycle decision.

I filed unfair labor practice (ULP) charges against Massaro and two related companies (Trinfinity Corp and Free Awareness LLC) in the Oakland regional office of the NLRB on Friday. The ULP charges allege that Massaro presently subjects current and former employees to these illegal rules. If the ULP charges are successful, Massaro will be required to rescind the rules from every employment agreement he or his organization is a party to.

Confidentiality, Media Contact, and Non-Disparagement Rules

The confidentiality, media contact, and non-disparagement rules are all illegal for basically the same reason. The NLRA protects employees' right to communicate about working conditions through channels outside the immediate employee-employer relationship. (Valley Hospital Medical Center, Eastex, Inc. v. NLRB). Accordingly, the NLRB has long held that “employees have a right to discuss among themselves, and with the public, information about their terms and conditions of employment for the purpose of mutual aid and protection.” (Motor City Pawn Brokers). These three rules would reasonably be construed as prohibiting employees from exercising these rights and are therefore presumptively unlawful under the Stericycle decision.

The confidentiality, media contact, and non-disparagement rules contained in Massaro’s agreements are mostly fairly standard and unremarkable with one exception. The agreement defines “confidential information” as including:

Bentinho Massaro or any Related Party’s business matters, proprietary business information, financial matters, legal matters, personal matters, private residence locations, security alarm codes, household activities and guests, health and medical information, fitness, sexual matters, personal relationship matters, matters involving spiritual or personal instruction, leisure activities, lifestyle, proclivities, customs, and private conduct.

I have never seen a confidentiality clause in an employment agreement that includes the “sexual matters” of the top boss. In the reporting on Massaro and his cult, ex-followers frequently accuse him of engaging in various sorts of sexual misconduct.

No-Recording/No-Camera Rule

The employment agreement also includes a rule against making and posting certain recordings and videos of the workplace:

Without Bentinho Massaro’s advance express consent, I will not create, share, distribute or make public in any way photographs, videos, movies, sound or image recordings or any other depictions or likenesses of Bentinho Massaro (collectively referred to as “Images and Recordings”).

Employees have a right to engage in “photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media” for the purposes of mutual aid and protection. (Whole Foods Market, Inc.; Caesars Entertainment; T-Mobile USA, Inc.). This rule would reasonably be read as prohibiting employees from exercising this right and is therefore illegal under Stericycle.

Additionally, this rule requires employees to get “advance express consent” before making or posting recordings and videos of the workplace. Employees never need an employer’s permission, written or otherwise, to engage in protected activities. (Brunswick Corp).

Mandatory Arbitration Rule

As is typical these days, this agreement contains a mandatory arbitration rule that, by its terms, forbids individuals victimized by Massaro from accessing the court system. The arbitration rule is long, but here is how it begins:

I recognize the mutual benefits of voluntary alternative dispute resolution by binding confidential Arbitration and therefore agree that the exclusive manner of resolving any and all disputes, claims or controversies between Me (Receiving Party) and Bentinho Massaro, Trinfinity Corp or Free Awareness LLC and any and all Related Parties, of any kind or nature whatsoever, shall be by Mandatory Binding Confidential Arbitration. Arbitration shall take place via an arbitration institution of Bentinho Massaro’s choice in a location of Bentinho Massaro’s choice, and will be heard and decided by a sole neutral arbitrator (“Arbitrator”) selected either by mutual agreement or by the arbitration institute’s rules. We (Receiving Party and Disclosing Party) have the right to conduct discovery, and written discovery requests and discovery results will be deemed Confidential Information.

Much has been written about what a problem these rules are for workers, but few seem to realize that these kinds of rules can violate the NLRA if they are not written carefully, and this one was not.

Employees have a right to file unfair labor practice charges at the NLRB and thus mandatory arbitration rules that restrict that right violate the NLRA. (Prime Healthcare Paradise Valley, LLC). This arbitration rule requires that “any and all disputes, claims or controversies” be resolved through arbitration and contains no explicit exemption for disputes, claims, or controversies arising under the NLRA.

Later on in the rule, there appears to be some attempt at including a savings clause, which states that “Arbitration shall not apply to any claims necessarily excluded by law.” Some lawyers put boilerplate clauses like this in mandatory arbitration rules in an effort to protect the rule from invalidation. The idea is that, by inserting some generic language about how the arbitration rule does not apply where the law forbids it, this ensures that the rule is legal.

This is incorrect.

As the NLRB explained in Ingram Book Co., “rank-and-file employees do not generally carry lawbooks to work or apply legal analysis to company rules as do lawyers, and cannot be expected to have the expertise to examine company rules from a legal standpoint.” Thus,  an “employer may not specifically prohibit employee activity protected by the Act and then seek to escape the consequences of the specific prohibition by a general reference to rights protected by law.” (Tower Industries Inc.). In this case, it is not even clear to me, a legal professional, what the savings clause means, and it certainly would not be clear to a regular worker after reading it that the mandatory arbitration clause does not apply to unfair labor practices under the NLRA.

Restrictive Covenants Need to Go

It is has been obvious for a long time that these kinds of rules have no good purpose. They exist to hide bad behavior, protect bad actors, and create a general climate of fear in the society about what you can and can’t say about the institutions you interact with. Sharing things like trade secrets is already illegal, as is defamation. What confidentiality, non-disparagement, and similar kinds of rules do is go beyond that to make it impossible to share basically anything negative about some kind of company. This is no way for a society to function. And it is telling that even cults have turned towards these tactics as effective ways of exercising undue control over their members.

Thankfully, the current NLRB has taken an aggressive stance towards these kinds of rules. But federal and state lawmakers should also consider introducing legislation to straightforwardly ban these kinds of rules rather than relying solely upon a contestable interpretation of the NLRA to get the job done.