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Profit, Mission, and Protest at Work


The classic understanding of capitalism maintains that the social responsibility of business is to increase its profits. But in the last decade, many firms have announced commitments to various social justice issues, folding them into corporate mission statements, codes of corporate social responsibility, and branding. Firms engaging in so-called “woke capitalism” signal their virtuous support for progressive social causes favored by both their consumer base and their idealistic young workers. This has become particularly important in a tight labor market: by targeting workers’ values, savvy firms increase recruiting yields, enhance productivity, and reduce training costs as retention rates rise, while simultaneously providing better service for customers who share the workers’ values and are attracted to the brand— all of which translate into larger profits.

When workers undertake employment at these firms, they assume that the firm’s social justice commitments are both authentic and enforceable and that they will dedicate their labor toward producing goods and services that are consistent with their values. Indeed, the Wall Street Journal and the Harvard Business Review recently characterized the effort by corporations to re- frame their corporate commitments to purposes beyond profit- maximization as forging a “new social contract” with employees, offering workers a sense of higher purpose at work and an opportunity to make a positive difference in the world in exchange for deeper engagement and, in some cases, lower compensation.

Unfortunately, many representations of corporate commitment to political and social agendas are anemic at best, and in- authentic at worst. When workers learn that the firm’s commitment to its version of woke capitalism is weak or nonexistent and that they have invested their single greatest resource—their labor—towards the unrealized goal, they have protested around topics spanning social justice, environmental, and political arenas. Because most nonunion workers are employed at will, and because labor and employment law have long bowed to firms’ managerial prerogative to control and to alter the entrepreneurial direction of the firm as necessary in order to thrive in a competitive market, workers who lack explicit contractual protection can be disciplined or fired for engaging in such protests.

This Article outlines a proposal for interpretation of the National Labor Relations Act that would protect workers against retaliation where employers deliberately utilize social justice commitments in mission statements, CSR codes, and brand marketing campaigns as a carrot to attract and retain workers, effectively converting those commitments into a form of fringe benefit or a working condition that relates to workers’ material self-interest. At stake is a clash between workers’ statutory rights under the labor laws to speak collectively at work, and firms’ First Amendment rights to control the public presentation of their brand, even when doing so is duplicitous. As economic and political power becomes increasingly concentrated in the hands of pri- vate parties, including large firms, collective workplace protest seeking to hold firms to their marketing messages and mission statements offers the greatest possibility for worker influence and voice. Protecting workers’ voices also serves the public interest: firms should not be permitted to use the First Amendment as a sword to leverage social justice movements to increase corporate profit while simultaneously blocking real change.