When a Leak Becomes a Lifeline: Reinvigorating Federal Labor Law to Protect Media Whistleblowing About Workplace Safety

Abstract

At workplaces across the United States, the COVID-19 pandemic brought with it an epidemic of threats and firings as employee whistle-blowers spoke out publicly about their concerns over safety inadequacies. But the silencing of employee dissent is not limited to the medical field. Distribution giant Amazon confirmed that it fired two tech workers critical of the company’s coronavirus safety precautions because they violated a company policy against commenting publicly on Amazon’s business practices without supervisory approval. A company vice president noisily resigned in protest, declaring that the firings were “designed to create a climate of fear.”

Remarkably, employers everywhere seem convinced that they have total control over what employees say to the press and public—even though federal regulators have told them, repeatedly, that they do not.

The latest reminder came in March 2020 in Maine Coast Regional Health, a case that involved whistle-blowing speech by a hospital insider. In that case, three Trump administration appointees to the National Labor Relations Board (NLRB) reaffirmed the Board’s longstanding position that categorical prohibitions on speaking to the news media are unlawful -- a ruling recently affirmed by a three-judge panel of the federal First Circuit. That the Trump-dominated NLRB ruled in favor of workers' speech rights, even after having retreated from many other pro-employee precedents, shows just how durable and widely accepted the principle is: Employers may not threaten employees with reprisals just because they discuss their work with the press.

When employers disregard employees’ rights to speak to the media, news coverage suffers. Journalists are left with the unpalatable options of relying on unnamed sources or quoting party-line spin from corporate spokespeople. Audiences must make do with incomplete accounts of how pseudonymous workers struggle to maintain hygiene in unnamed hospitals in unspecified locations.

This article attempts to amplify a little-noted body of precedent that guarantees private-sector employees the right to discuss work-related matters with the media without fear. This right, the article observes, is of special urgency at a time of global health crisis when the public needs to hear from trustworthy subject-matter experts and to experience the stress and suffering of front-line medical workers.

Keywords: COVID-19, pandemic, labor law, employment law, employee rights, NLRB, National Labor Relations Board, freedom of speech, whistleblower rights, whistle-blower protection