Compelled Disclosure and the Workplace Rights It Enables
16 Pages Posted: 24 Mar 2021 Last revised: 19 May 2021
Date Written: March 5, 2021
Abstract
Disclosure requirements imposed on providers of goods and services are a longstanding approach to regulation. Disclosure provides information to consumers of goods and services at the point when the information is most likely to enable informed choice. Some mandatory disclosure laws require speech from one person not (or not only) because of the consumer’s interest in receiving it, but because of the public interest in preventing misleading or illegal behavior by the speaker, or the hearer or a third party, or to help a consumer or worker know their legal rights. The disclosure requirements of minimum labor standards laws, such as the federal Family and Medical Leave Act, ERISA, WARN, and other laws enable workers to know their rights. But in 2018, the Supreme Court threw the constitutionality of disclosure laws into doubt in National Institute of Family and Life Advocates v. Becerra, which struck down a disclosure law on the grounds that it was a speaker-based, content discriminatory regulation of speech. Ironically, the day after the Court struck down the disclosure rule in NIFLA, it issued a ruling in Janus v. AFSCME Council 31 that depends on the very form of compulsory disclosure that NIFLA struck down. The system that the Court created in Janus and the cases that preceded it dpends on unions being required to inform their members and all employees they represent that they have a right to leave the union, terminate dues or fee payments, and to receive union representation for free. Not only is it impossible to square the reasoning of NIFLA with the legal regime of Janus, NIFLA suggests that requiring unions to inform workers of their right to free ride is compelled speech that violates the union's First Amendment rights. When the Court chose the right not to disclose on one day and the right to receive information on the next, it revealed that treating disclosure rules as compelled speech inevitably means courts will be picking sides in fights involving free speech or other rights claims on both sides. For that reason, as this article argues, courts should be more circumspect in treating compelled notice forms of regulation as violating the First Amendment.
Keywords: labor, free speech
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