By Helen Norton. Full text here.
Employers’ lies, misrepresentations, and nondisclosures about workers’ legal rights and other working conditions can skew and sometimes even coerce workers’ important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers’ rights or other working conditions, as well as by requiring employers to disclose truthful information about these matters. These governmental efforts, however, are now increasingly vulnerable to constitutional attack in light of the recent antiregulatory turn in First Amendment law, in which corporate and other commercial entities seek—with growing success—to insulate their speech from regulation in various settings. This Article examines this trend’s significant but underexplored implications for the workplace, exploring how First Amendment law may now be changing in ways that undercut the government’s efforts to inform and empower workers by casting doubt on its ability to require truth or prohibit lies in certain contexts. This Article then considers the circumstances under which we should instead understand the First Amendment to permit the government to require employers to tell the truth about workers’ legal rights and other working conditions.
To this end, this Article draws from First Amendment theory and doctrine in other settings in which listeners have less information or power than speakers, where governmental efforts to inform and empower listeners by prohibiting lies and requiring truthful disclosures can improve the communicative discourse. This Article then explains how employer speech similarly occurs within a communicative relationship riddled with information and power asymmetries: employers not only control workers’ economic livelihood, but they also know more than workers about the terms and conditions of employment, about industry and economic projections, and—as repeat players with greater resources—about available legal protections. This Article thus urges a theory of employer speech that addresses these dynamics by treating workers’ interests as listeners as paramount for First Amendment purposes. Because these interests are frustrated by employers’ lies and nondisclosures, the Article concludes that the First Amendment should be understood to permit government to require employers to disclose objectively verifiable information about workers’ rights and other working conditions as well as to prohibit employer lies or misrepresentations about these matters that threaten to coerce or manipulate workers’ choices.