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to be decent cooperative conflict averse doing what they think will keep them employed and in that environment the idea of protected protest does not just seem risky it barely registers third under the action problem mcdaniel argues that knowing the law is not enough workers must feel empowered to act the complexity and ambiguity of current doctrine discourage boldness leaving workers unsure whether their actions will be protected or punished without explicit communicable protection they hesitate to engage in concerted activity even when their grievances are widely shared and legitimate mcdaniel argues that rearticulating section 7 in terms of vivid rule like rights can help overcome these barriers he offers two such innovative doctrinal revisions to section 7 the right to challenge and the right to appeal these rights are designed to be salient attention grabbing to promote reception accessible easy to understand and paraphrase to facilitate comprehension and directive inviting bold legally protected action to promote appreciation pp 214 18 in contrast to the vague multi factor tests that currently govern misconduct 3 and disloyalty 4 the proposed rights offer clarity and confidence to workers who are least likely to know or assert their protections the article s strength lies in its layered pragmatism it acknowledges the limitations of transmission strategies such as the 2011 notice posting rule the procedural delays inherent in board adjudication and the political volatility associated with administrative reform yet it insists persuasively that clearer doctrine can still shift behavior spark solidarity and lay groundwork for broader change case illustrations trus joist 5 and miklin 6 show how the proposed rights would simplify analysis and protect workers in real world disputes this is not just a call for stronger rights it is a call for rights that nonunion workers can hear understand and act on mcdaniel does not pretend this fixes everything but he offers something rare a doctrinal shift built with real workers in mind if section 7 is to mean anything to the people it was meant to protect it must speak their language this article shows how mediators are those channels through which labor protection information flows to workers these include the board unions employers journals public commentators friends family coworkers pp 181 82 197 99 according to mcdaniel sophisticated and credible mediators are scarce p 181 moreover although unions are t he most competent and motivated mediators they have only limited opportunities to engage with nonunion workers directly and w hen they do interact they will naturally tend to emphasize doctrine relevant to unionization perhaps leaving these workers comparatively ignorant of the section 7 rights that they possess outside the union context p 201 see e g atlantic steel co 245 n l r b 814 816 1979 establishing a four factor balancing test for determining whether an employee s section 7 activity loses the act s protection because of that employee s verbal interaction with management 1 the place of the discussion 2 the subject matter of the discussion 3 the nature of the employee s outburst and 4 whether the outburst was in any way provoked by an employer s unfair labor practice clear pine mouldings inc 268 n l r b 1044 1046 1984 adopting the third circuit s objective test for determining whether verbal threats by strikers directed at fellow employees justify an employer s refusal to reinstate whether the misconduct is such that under the circumstances existing it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the act internal quotation marks omitted enforced mem 765 f 2d 148 9th cir 1985 pier sixty llc 362 n l r b 505 06 2015 applying a totality of the circumstances test for determining whether employees off duty offsite use of social media to communicate with other employees or with third parties loses its protection quoting triple play sports bar grille 361 n l r b 308 310 2014 enforced 855 f 3d 115 2d cir 2017 see e g nlrb v loc union no 1229 int l bhd of elec wkrs 346 u s 464 474 75 1953 jefferson standard insubordination disobedience or disloyalty are sufficient reasons to discharge an employee for cause mastec adv techs 357 n l r b 103 107 n 9 2011 explaining that under jefferson standard employee communications to third parties in an effort to obtain their support are protected where the communication indicated it is related to an ongoing dispute between the employees and the employers and the communication is not so disloyal reckless or maliciously untrue as to lose the act s protection quoting mountain shadows golf resort 330 n l r b 1238 1240 2000 footnote omitted see trus joist macmillan 341 n l r b 369 370 72 2004 here using the atlantic steel test the board found two factors neutral location and provocation one slightly favoring protection subject matter related to union rights and one strongly against it the offensive calculated nature of the employee s outburst ultimately concluding that the employee s conduct fell outside the scope of protected activity by contrast under mcdaniel s proposed framework employee s conduct however offensive would likely remain protected as part of a legitimate workplace challenge with less emphasis on intent tone or planning and more focus on the core labor rights at stake see miklin enters inc v nlrb 861 f 3d 812 8th cir 2017 en banc here the eighth circuit found that a workers public sick leave campaign suggesting food contamination was unprotected under section 7 due to its perceived disloyalty and misleading nature thereby rejecting the board s narrower definition of disloyalty based on malicious intent by contrast under mcdaniel s right to appeal framework similar worker tactics would likely be protected as the campaign was sincere not defamatory and focused on the labor dispute cite as anne marie lofaso can you hear section 7 now jotwell january 15 2026 reviewing stefan mcdaniel rearticulating labor rights 46 berkeley j emp lab l 177 2025 https worklaw jotwell com can you hear section 7 now putting the work of academia back into academic freedom debates dec 2 2025 deepa das acevedo add a comment archana sridhar academic freedom as content moderation a framework in favor of individual rights and institutional autonomy 50 innovative higher educ 743 2024 deepa das acevedo i m always a little surprised by how rarely debates about academic freedom pay attention to the actual work of academia sure there are anecdotes featuring syllabi wars or lectures gone wrong or wrongly prevented from going on at all but those vignettes used to illustrate and persuade are always hurried along so that the author can get to their normative argument defending academic freedom or announcing once again its demise the vignettes aren t really there to make us focus on the what and how of academic labor archana sridhar s recent article isn t exactly about granular academic labor practices either i doubt she d consider it a labor piece at all but in very refreshing way she focuses on academic work structures and patterns in ways that generate insights about what makes academic freedom possible sridhar s central argument is that universities are should be thought of as and should think of themselves as analogous to platforms like google facebook and x faculty meanwhile are analogous not to the employees of those platforms they re not googlers but to user moderators or as she states in the conclusion universities should be considered analogous to internet platforms more passive or neutral hosts of content created and owned by individuals and groups who moderate their own content collectively sridhar admits that t he analogy is not perfect and indeed there is likely no end to the number of plausible counterarguments and counter hypotheticals we might drum up sridhar highlights the fact that user moderators are often poorly paid employees in countries around the world whose incentives are not to prioritize facts or truth but rather to efficiently remove content that violates certain corporate policies and to promote other content that will attract views we might even start a few steps earlier platform companies are companies and not of the b corp variety defined above all by the profit motive or we might go a few steps further down the analytic line those user moderators are not lengthily and expensively trained specialists in and around the content they are charged with moderating there are a lot of yes but possibilities when it comes to sridhar s analogy 7 but sridhar s analogy holds up better than expected as higher ed scholars have been documenting with increasing urgency most of the faculty doing the bulk of content moderation work in american academia the peer reviews and book reviews and committee work and such are poorly paid employees or even poorly paid independent contractors and thanks to this precariousness their incentives are not only to prioritize facts or truth besides the real value of sridhar s article is not its central analogy but how it nudges us towards thinking about labor patterns and managerial patterns oversight mechanisms and other mundane institutional organizational dynamics such dynamics deserve at least as much attention as explaining why the university matters for democracy for instance sridhar discusses the 2019 incident involving george washington university gwu professor david karpf and new york times columnist bret stephens whom karpf offended via a tweet comparing stephens to bedbugs stephens replied to karpf by email cc ing the gwu provost sridhar alludes to this episode not to make the usual point that karpf had a right to critique stephens or why it matters that stephens thought gwu could and should rein in karpf rather sridhar highlights that gwu did not exercise and was rightly glad to not exercise managerial oversight over karpf s activities academics are in the business of pushing boundaries thinking critically and generating new knowledge and teaching others to do likewise none of these activities are easily translated or packaged for a non specialist audience let alone for an audience with ruffled feathers and a national readership it was better for gwu to be able to stay out of it that point though is grounded in the how of academic labor more than the why of academic freedom as i ve similarly argued 8 we in the academy take it to be self evident that despite our w2s we are more like free agents sharing a building than like employees sharing an employer that arrangement is both under particular but not unprecedented stress right now and its extraordinariness needs an explanation sridhar encourages us to think through such issues deepa das acevedo the war on tenure 13 2025 deepa das acevedo extramural absolutism 6 j free speech l 321 2025 cite as deepa das acevedo putting the work of academia back into academic freedom debates jotwell december 2 2025 reviewing archana sridhar academic freedom as content moderation a framework in favor of individual rights and institutional autonomy 50 innovative higher educ 743 2024 https worklaw jotwell com putting the work of academia back into academic freedom debates a constitutional reckoning for workers compensation nov 5 2025 charlotte s alexander add a comment michael c duff reverberations of magna carta work injuries inkblots and restitution __ ne l rev __ 2025 available at ssrn sept 17 2024 charlotte s alexander i really like articles that take big swings when i read a good one and michael c duff s reverberations of magna carta falls into that category it teaches me something reveals assumptions that i didn t know i held and points the way to new ways of thinking reverberations takes as its starting point the fact that state workers compensation systems are covering a dwindling share of the costs of work related illness and injuries a u s department of labor study puts the percentage at only 21 while workers themselves their families private insurance and taxpayer funded medicare medicaid and social security programs are covering the rest duff casts this remedial deprivation as a constitutional problem duff roots his argument in the original grand bargain that produced the workers compensation system where workers give up their right to sue in tort in exchange for a workers compensation remedy he contends that states chipping away of workers compensation protection through caps time limits and procedural barriers effectively strips workers of the remedies they are due in exchange for the common law rights they relinquished in duff s view those common law rights are protected from state interference under the ninth amendment which recognizes unenumerated rights retained by the people and section 1 of the fourteenth amendment which safeguards the privileges and immunities of citizens of the united states against state interference he argues a state s dilution of tort remedies through a slow but deliberate imposition of inadequate workers compensation benefits increases the risk of injury such dilution is incompatible with any role the fourteenth amendment might have played in policing encroachment on and protecting established tort rights p 17 if as duff claims states cannot constitutionally eliminate tort law then it follows that states cannot also eliminate or substantially hamper tort s replacement duff is bullish about both this argument s legal and moral weight and urges workers to adopt it in developing a legal theory of rights violation and advocating for workers compensation reforms pp 9 18 even readers who do not sign onto duff s constitutional argument can find something to like in this article he offers a host of statistics on the present state of the workers compensation system across states he provides a case study of the problem of occupational diseases especially those with long latency periods and tricky questions of causation resulting in the sheer horror of over 100 000 untracked occupational disease deaths per year p 36 he walks through a catalog of examples of worker protective approaches to this problem including a legislatively established presumption of causation for firefighters diagnosed with certain types of cancer and similar temporary presumptions covering workers who contracted covid during the pandemic he also carefully analyzes the interaction of federal labor law with state level workers compensation laws and throughout he prompts us to question the language that is commonly used to describe accidental harm to workers thereby also questioning our complacency about such harm a ssuming that all work injury is accidental puts the cart factually before the horse work harming workers is no accident all industry foreseeably harms workers the only unknown fact is which particular employer or industry will harm which particular employee p 4 in sum duff goes beyond the well documented weaknesses ...
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