More Unfair Labor Practices from Bryan Johnson
Some interesting threats.
My clients’ labor dispute with Bryan Johnson continues to intensify with Mr. Johnson, through his attorney, threatening all manner of legal action if his former employees do not stop publicizing how their boss treated them and what terms and conditions of employment he has subjected them to. Indeed, Mr. Johnson is now even demanding that I take down the pieces I have written about the labor dispute on NLRB Edge (read those pieces here, here, here, and here).
On April 10, I sent the below letter to Mr. Johnson’s attorney explaining, once again, that workers have rights to publicize labor disputes and working conditions under the National Labor Relations Act and that threatening or bringing legal action against them for exercising those rights is a violation of federal law.
So far, this has not deterred Mr. Johnson from engaging in precisely this sort of illegal retaliation. Below is a letter sent by Mr. Johnson’s lawyer on April 17 demanding that his former employee, Taryn Southern, take down and cease posting anything that “directly or indirectly reference [sic] Mr. Johnson.”
This particular demand letter is interesting for a couple of reasons:
The letter does not merely demand that Southern stop disparaging Johnson. It demands that she never mention him or even that she never say something that Johnson perceives as having something to do with him regardless of whether it is disparaging or not. A blanket demand that Southern stop disparaging Johnson would itself be illegal because Southern, like all current and former employees, have a right to publicize labor disputes and working conditions even in disparaging ways. But this demand goes beyond that and seeks to halt Southern from making public statements that even Johnson’s illegal nondisparagement provision does not forbid.
The letter does not merely demand that Southern stop publicizing her labor dispute and working conditions, but also that I stop doing so as well. I have no contractual agreements with Mr. Johnson, represent several of his former employees not just Southern, and was the initial charging party on some of the unfair labor practices charges filed against Johnson. Everything I have written about Mr. Johnson, which you can read in the links above, has been about or related to this ongoing labor dispute and oriented towards winning the support of the public in this labor dispute. Also, of course, everything I have written about Mr. Johnson has been my own words and of my own initiative. This is what I do.
Once again this whole labor dispute just keeps illustrating the problem with the current legal regime around the use of confidentiality, non-disparagement, and non-disclosure rules. The non-disparagement provision at issue in this case is clearly illegal under current Board law (Stericycle, McLaren Macomb). And Johnson is clearly attempting to enforce the clause against activity that is protected by the NLRA. Indeed, in the letter above, his lawyer makes no mention of the NLRA, does not acknowledge any right of a former employee to talk publicly about their former employer under the NLRA, and issues a demand — to not directly or indirectly reference Mr. Johnson — that clearly is inclusive of activity protected by the NLRA.
All of this is illegal. The non-disparagement clause is illegal. The legal threats are illegal. Initiating an arbitral proceeding to enforce an illegal contract clause or to target protected activity, as the letter threatens to do, is illegal. The future letter I will probably get demanding that I take down this post publicizing my clients’ labor dispute with Mr. Johnson will also be illegal.
The problem is that, despite all of the illegality involved here, the enforcement regime is not sufficient to deter this kind of behavior and most workers are not willing to endure this sort of nonsense in order to vindicate their rights. Indeed, bringing public attention to this issue and the way it affects other Johnson employees as well as millions of workers across the country is the primary motivation of Taryn Southern, as she indicated in the New York Times piece about Johnson’s use of these clauses. Hopefully policymakers will listen to Taryn and strengthen the laws against subjecting workers to these contract rules.