Chicago-Kent Law Review

Volume 95 Issue 1 The State of the Law of the New Labor Article 39 Movement

9-15-2020

Short Strikes

Michael M. Oswalt Northern Illinois University

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Recommended Citation Michael M. Oswalt, Short Strikes, 95 Chi.-Kent L. Rev. 67 (2020). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol95/iss1/39

This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. 42394-ckt_95-1 Sheet No. 38 Side A 06/12/2020 13:18:38 , 3 IMES T , L.A. At Wayfair, Ama- The Continuing Assaulton 6 . 597, 603–06 (2016). (2016). 603–06 597, . EV How American Workers Lost the the Lost Workers American How * Teacher Walkouts: What toKnow Another decade brought brought decade Another 87,87 (2003) (“It is not surprising 2 .L.R AL ORUM (1992). Scholars used words like “enerva- like words used Scholars (1992). SWALT .F , 104 C , 104 AB L 67 67 M. O EW . 518, 518 (2004). ROSPECT EV .P M 12 N Labor Policy and the Enervation of the EconomicStrike .L.R , A SHORT STRIKESSHORT ICHAEL In 2019, the arrow stuck. arrow the 2019, In 5 ICH M . 703,703 (2001); James G. Pope, ) 6/10/2020 ) 12:03 PM EV , 103M Improvisational Unionism ELETE The Strike: A Contemporary Lesson from Labor History or a Historical Fast-food workers walkout in N.Y. amid rising labor unrest D .L.R Is the Strike Dead? Strike the Is OT EX .337, J. 337–55 (Joe Berryed., 2012). Is theStrike Dead N Matthew W. Finkin, O . 547, 547 (1990); Julius G. Getman & F. Ray Marshall, Marshall, Ray F. & Getman G. Julius (1990); 547 547, . TUD See , 79 , 79 T 3(D EV .S AB 4 .L.R In 2003, so did the New Labor Forum. New Labor the did 2003, so In 1 SWALT V LL I ?, 37 ?, 37 L 4O In an earlier article, I suggested that short, service industry-based industry-based service short, that suggested I article, an earlier In The state of strikes—their numbers, their results, their coverage—has coverage—has their results, their numbers, strikes—their of The state 1990 U. was just in titles. 3. . Alana Semuels, Alana . 3. strikes represented an arrow in a quiver of tactics unions were firing at the the at firing were unions tactics of quiver in a arrow an represented strikes stick. might what to see wall the Right toStrike been a perennial source of labor movement discussion. And things could could And things discussion. movement labor of source perennial a been Strike the “[i]s asked, Prospect American the 1992, In dark. of kind get Dead?” 2. . Peter Rachleff, Peter . 2. tion,” referred to “continuing assault[s],” and suggested that the right itself had been “lost.” And that (Nov. 29, 2012), https://www.latimes.com/business/la-xpm-2012-nov-29-la-fi-mo-fast-food-strike- that scholars andactivists are asking if the strikehasany efficacy left to speak of,orifit should be history.”). of dustbin the to consigned collectivebargaining rightsstruck for dayson end. Dana Goldstein, 6. In 2018,a different . arrow stucktheinpublic sector whenthousands of teachers lacking even 4. . Interactive Issue, Interactive . 4. Artifact * Much appreciation to Laura Weinrib for especially thoughtful commentary. Thanks also to Catherine Catherine to also Thanks commentary. thoughtful especially for Weinrib Laura to appreciation Much * Fisk, César RosadoMarzán, and Hiba Hafiz for helpful suggestions. William Ballentine andothers on own. my are errors All assistance. editorial excellent provided Review Law Chicago-Kent the linking walkouts at McDonald’s et al., to the first Walmart work stoppage stoppage work Walmart first the to al., et McDonald’s at walkouts linking the Pro- to answer tentative the point, At that before. week the in history backed Though a caveat. with to be “no,” seemed question original spect’s workers a few (usually small were strikes the unions, big by and assisted through. and through and non-union most), at (24 hours, short store), per a “contem- represented if strikes wondered still Journal The Labor Studies “a historical remain to were destined or history” labor from lesson porary artifact.” new data and notably less morbidity. “Fast food workers walk out in N.Y. in N.Y. out walk food workers “Fast morbidity. less notably and new data 2012, late in the L.A. Times announced unrest,” U.S. labor rising amid Right toStrike, and Other Tales 5. . Michael M. Oswalt, Oswalt, M. Michael . 5. 1. . John Hoerr, Hoerr, John . 1. 20121129-story.html [https://perma.cc/2XK3-GBPG]. [https://perma.cc/2XK3-GBPG]. 20121129-story.html 42394-ckt_95-1 Sheet No. 38 Side A 06/12/2020 13:18:38 A 06/12/2020 38 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 38 Side B 06/12/2020 13:18:38 (Jul. (Jul. OX , V Riot Games Games Riot (Sep. 20, 2019), (Aug. 27, 2019), 2019), 27, (Aug. (May 6, 2019), 2019), 6, (May IMES T What I had previ- What I IMES IMES 9 T T , CNN (June 17, 2019), 2019), 17, (June CNN , BuzzFeed News staffers stage stage staffers News BuzzFeed Walmart employees protest gun gun protest employees Walmart , N.Y. [Vol 95:1 [Vol , N.Y. , L.A. Amazon Prime Day means protest for workers in Minne- in workers for protest means Day Prime Amazon To the extent organizations drove the actions, actions, the drove organizations To the extent 7 (Apr.2018),3, https://www.nytimes.com/2018/04/03/us/teacher- CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM IMES Even children started “striking” their schools for a a for schools their “striking” started children Even Wayfair employees walkout in protest over sales to migrant detention detention migrant to sales over protest in walkout employees Wayfair 8 How to Organize a Walkout ELETE Why is WeWork including a strike by employees among its possible risk D OT (June 26, 2019), https://www.theguardian.com/us-news/2019/jun/26/wayfair- N https://perma.cc/M4X3-ZLDN]. https://perma.cc/M4X3-ZLDN]. [ Some Amazon warehouse workers are planning to strike on Prime Day Prime on strike to planning are workers warehouse Amazon Some (Aug. 8, 2019), https://www.washingtonpost.com/business/2019/08/07/walmart- 2019), 8, (Aug. , N.Y. T O (Jul. 15, 2019), https://www.washingtonpost.com/business/2019/07/15/amazon- (Aug. 14, 2019), https://qz.com/work/1687484/wework-ipo-risk-factors-in-s-1-filing- 2019), 14, (Aug. 3(D OST OST UARDIAN .P .P G UARTZ SWALT V HE ASH ASH , Q 68 68 4O Why “short strikes” have not just persevered but expanded has some has some but expanded persevered not just have strikes” Why “short , T , W , W Nurses in Four States Strike to Push for Better Patient Care Patient Better for Push to Strike States in Four Nurses detention camps, line speeds, prayer time, staffing, mandatory arbitration, arbitration, mandatory staffing, time, prayer speeds, line camps, detention sales. and gun unionization, https://www.latimes.com/business/technology/la-fi-tn-riot-games-walkout-protest-forced-arbitration- camps 7. . Edward Helmore, Helmore, Edward . 7. they ranged from the incipient to the non-existent, causing executives at at executives causing non-existent, to the incipient the from they ranged inherent as an strikes of the prospect to list WeWork like start-ups massive risk to the company. a social become has seemingly weapon as institutional an ously described a to take stock. like It good time seems phenomenon. stop- longer or to in-house Relative answers. practical and legal obvious are They loss. job and minimize protection maximize walkouts the pages, and true tried well—are Strikes—done coverage. media for custom-built organizing. future support that capacities internal of facilitators 8, 2019), https://www.vox.com/2019/7/8/20686109/amazon-workers-prime-day-strike employees-rally-to-protest-furniture-sales-to-migrant-facilities [https://perma.cc/TCF3-X3HC]; Alexia Alexia [https://perma.cc/TCF3-X3HC]; employees-rally-to-protest-furniture-sales-to-migrant-facilities 8. . Michelle Cheng, Cheng, Michelle (“About [https://perma.cc/6439-THBV] https://www.nytimes.com/2019/09/20/us/nurse-strike.html . 8. factors? workers-minnesota-prime-day-means-protest/ [https://perma.cc/3E7Y-AN4Z]; Sam Dean, Dean, Sam [https://perma.cc/3E7Y-AN4Z]; workers-minnesota-prime-day-means-protest/ [https://perma.cc/JF4S-FY72]; Rachel Siegel, Siegel, Rachel [https://perma.cc/JF4S-FY72]; sota Darcy, Oliver [https://perma.cc/WVG5-Q6WJ]; 20190506-story.html walkout in effort to compel managementto recognize union https://www.cnn.com/2019/06/17/media/buzzfeed-news-walkout-union/index.html Bensinger, Greg & Bhattarai Abha [https://perma.cc/H4JC-KR55]; employees-staging-walkout-protest-gun-sales/ [https://perma.cc/23M7-SDX4] (“Roughly40 white- and What to Expect to What and zon, Buzzfeed, Riot Games, major hospitals, and elsewhere, workers have have workers elsewhere, and hospitals, major Games, Riot Buzzfeed, zon, migrant to as sales varied as issues returned—on quickly out—and walked https://www.nytimes.com/2019/08/27/magazine/how-to-organize-a-walkout.html 6,500 [nurses] . . . organized a 24-hour strike . . . .”). .”). . . . strike 24-hour a organized . . . [nurses] 6,500 period or two over issues like voting, sexual misconduct, immigration, the the immigration, misconduct, sexual voting, like issues over two or period Day, the New York By Labor and guns. discrimination, environment, tip-guide, Walkout” a to organize a “[h]ow produced had Magazine Times “to someone designate and signs” “[c]arry to activists would-be reminding preferred. megaphone” demands”—”large voice your collar Walmart employees here walked out . . . to protest the retailer’s gun policies . . . .”); Aimee Ortiz, Ortiz, Aimee . .”); . . policies gun the retailer’s protest to . . . out walked here employees Walmart collar sales [https://perma.cc/WWK4-52KJ]. [https://perma.cc/WWK4-52KJ]. walkouts-strikes.html walkouts-strikes.html Fernández Campbell, employees walk out to protest forced arbitration forced protest to out walk employees include-employee-strike/ [perma.cc/8C5G-WGHQ]. 9. . Malia Wollan, Wollan, Malia . 9. 42394-ckt_95-1 Sheet No. 38 Side B 06/12/2020 13:18:38 B 06/12/2020 38 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 39 Side A 06/12/2020 13:18:38 Major Major , L.A. In April 14 (Jan.3, 2019), ROSPECT .P M TRIKES . (Feb. 15, 2019) [hereinafter and health care. and health S ,A 13 TATS 69 69 .S HORT s to the future of short strikes, the the strikes, short of the future s to AB S Unofficially, that makes no sense. no sense. makes that Unofficially, L 10 UREAU UREAU ISE OF R , B transportation, SHORT STRIKES 12 HE T The Return of the Strike ) 6/10/2020 ) 12:03 PM I. ELETE Fast-food workers walk out in N.Y. amid rising U.S. labor unrest labor U.S. rising amid N.Y. in out walk workers Fast-food D OT N O retail, fast food, fast retail, 3(D ], https://www.bls.gov/news.release/wkstp.nr0.htm [perma.cc/H8DH-5A3M]. 11 Major Work Stoppages in 2018 SWALT V 2020] 2020] 4O The goal of this essay is to go deeper. I argue that the past eighteen to to eighteen past the that argue I go deeper. to is essay this of goal The and decline long the describes I Part follows. as proceeds The essay A defining feature of U.S. labor relations is strike decline. Officially, Officially, decline. is strike relations labor U.S. of feature A defining (Sept. 29, 2012), https://www.latimes.com/business/la-xpm-2012-nov-29-la-fi-mo-fast-food- 2012), 29, (Sept. IMES For the better part of a decade, striking has seemingly become the go-to go-to the become seemingly has striking a decade, of part better For the technology, in education, working conditions fed up with for people tactic hospitality, twenty-four months signal a short strike inflection point for reasons related related reasons for point inflection strike a short signal months twenty-four key while First, elsewhere. lead ultimately that but above factors the to law to labor traced be indeed can activism recent the of characteristics employment of protections inadequate and tangles the administrative rules, of “la- a new era represent even might actions The more. explain law may a by driven are surely strikers while Second, law.” employment as law bor head- not tweets, from it derives much of in practice, for “attention,” desire inter- although that suggests protest digital on literature emerging An lines. the meet Snapchat and Facebook, Twitter, when limits, has activism net can organizers strike short reputation, online with obsession corporate en- and do, can, strikes Finally, effect. powerful to barriers, the overcome it come when but spirits, gage solidarity more. matter may Millennials of generation a downtrodden of spirits be at- can revival the of Much work stoppages. U.S. of rise very recent prominent most three focus on the I and walkouts, to short-term tributed workers where McDonald’s, support: organizational by grouped examples, and internally; organized workers Google, where union; by a were assisted II Part roles. prominent played groups advocacy independent Uber, where to all twists adds and spread strikes’ for short reasons of a trio assumes effec- phenomenon’s the take on optimistic is a tentatively The result three. reversals legal of a summary with concludes III Part future. and tiveness sup- on institutional a premium put but also doubt into future that cast that worker-activists. budding for port Work Stoppages Work 10. . 10. T “there has been a significant reduction in the number of annual major work work major of annual number in the reduction been a significant has “there years. forty past the over stoppages” https://prospect.org/power/return-strike/ [perma.cc/P452-AVEQ]. [perma.cc/P452-AVEQ]. https://prospect.org/power/return-strike/ 11. . Steven Greenhouse, Greenhouse, Steven . 11. 12. . Alana Semuels, Semuels, Alana . 12. strike-20121129-story.html [perma.cc/B68W-CENJ] week (“A after hundreds ofWal-Mart employees walked off their jobs . . . fast-food workers . . . are staging a similar walkout.”). walkout.”). similar a staging . are . . workers fast-food . . . jobs their off walked 42394-ckt_95-1 Sheet No. 39 Side A 06/12/2020 13:18:38 A 06/12/2020 39 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 39 Side B 06/12/2020 13:18:38 21 By ILLION ILLION 22 .(2014), .(2014), (May 6, (May Many Many EE AG 17 Id. B ,22M M AC AISES , S . 1, 12–13 (2019). (2019). . 1, 12–13 R 360 (Apr. 5, 2019), 2019), 5, (Apr. 360 (Apr. 11, 2011), ISSENT OC AW , D . (Feb. 15, 2019), 2019), 15, . (Feb. .S (Oct. 4,2012), sa- , L EV walkout th TATS 16 ILLION IN COM .R . ORKER Y NN .S [Vol 95:1 [Vol ALON AB L EW , 45 , 45 A $15: $68 B ,S ,N UREAU IGHT FOR IGHT F , B —but many more do not. As Jake Rosen- As Jake do not. more many —but 18 23 note 10. 10. note Walmart is Rolling Out Big Changes to Worker Schedules This This Schedules Worker to Changes Big Out Rolling is Walmart Thin Yellow Line MPACT OF THE supra CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ,I ) 6/10/2020 ) 12:03 PM , 4 Tips For AvoidingAnd Surviving Strikes Wal-Mart Workers on strike on Workers Wal-Mart Here’s when 39,000 UC worker plan their 5 their plan worker UC 39,000 when Here’s ELETE (Tip 4: “Don’t Poke the Beast.”) Poke “Don’t (Tip 4: note 19, at 451. 451. at 19, note D ROJECT US Labor Studies in the 21st Century 21st the in Studies US Labor 15 OT Canthe One-DayStrike Revivethe Labor Movement? N .L.P supra O so is accounting for their duration. The walkouts are, by and and are, by walkouts The duration. their for so is accounting , DePillis, Lydia MP (Feb. 17, 2016) (“The new policies include a few of the things activists have been been have activists things the of a few include policies new (“The 2016) 17, (Feb. 24 E 3(D L OST ’ .P AT Major WorkStoppages Id. See, e.g. See, (Nov. 2018), https://s27147.pcdn.co/wp-content/uploads/Data-Brief-Impact-Fight-for-15- 2018), (Nov. SWALT V kicked off a trend that certainly seems “major” in every sense but but sense every in “major” seems certainly that trend a off kicked ASH 20 70 70 4O It’s already substantive. The strikes that hit Walmart in October October in Walmart hit that The strikes substantive. already It’s But if counting these sorts of minority strikes is important to assessing to assessing important is strikes of minority sorts these if counting But . .Work Stoppages Technical Note Technical Stoppages .Work . Much of the discrepancy rests on the government’s insistence on re- on insistence government’s on the rests discrepancy the Much of 19 , W 17 ORKERS 19. . Jake Rosenfeld, Rosenfeld, Jake . 19. firm-by-firm participation. By one estimate, the dozens of small strikes strikes small of the dozens By one estimate, participation. firm-by-firm workers. 22 million for raises win have helped $15 for by Fight organized https://www.law360.com/articles/1147056/4-tips-for-avoiding-and-surviving-strikes https://www.law360.com/articles/1147056/4-tips-for-avoiding-and-surviving-strikes 20. . Josh Eidelson, Eidelson, Josh . 20. large, not just small but short, usually lasting no more than a day. Short day. Short a than more no lasting usually short, but small just not large, 2012 late 2014, a commentator observed that that “the most remarkable thing” thing” remarkable most “the that that observed 2014, a commentator late unremarka- “how was AC broken a over out walking few workers a about become. had reaction that ble” https://www.bls.gov/news.release/wkstp.tn.htm [https://perma.cc/SH93-8WU6].. 18. labor’s state, 2019), https://www.sacbee.com/news/local/health-and-medicine/article230016769.html 2019), lon.com/2012/10/04/walmart_workers_strike/ [https://perma.cc/P7PY-9L26] (“[T]he first-of-its-kind first-of-its-kind (“[T]he [https://perma.cc/P7PY-9L26] lon.com/2012/10/04/walmart_workers_strike/ W 13. . Lizzie Widdicombe, Widdicombe, Lizzie . 13. Campbell, Braden [https://perma.cc/6FWZ-ZPH]. . 15. Others have sparked significant policy reversals at large companies. large at reversals policy significant sparked have Others 2019, the practice-focused Law360 published “4 Tips for Avoiding and and Avoiding for Tips “4 published Law360 practice-focused the 2019, Strikes.” Surviving 23. . Max Fraser, Fraser, Max years.”). several for demanding . 23. https://www.newyorker.com/magazine/2011/04/18/thin-yellow-line [perma.cc/47DL-BK25]. dissentmagazine.org/article/can-the-one-day-strike-revive-the-labor-movement dissentmagazine.org/article/can-the-one-day-strike-revive-the-labor-movement cording only “major” strikes implicating 1,000 workers more. or 1,000 workers implicating strikes “major” only cording feld has recently argued, this is fast becoming a significant descriptive descriptive a significant becoming is fast this argued, recently feld has gap. recent job actions meet this bar—20 did last year, totaling more partici- more totaling year, last did bar—20 this meet actions job recent 1986 since any year than pants [https://perma.cc/4UM5-3AQU]. . 16. 21. . N . 21. strike carries risks.”). As Eidelson reported, the first Wal-Mart strike owed much to contracted supply supply contracted to much owed strike Wal-Mart first the reported, Eidelson As risks.”). carries strike summer. the in earlier days multiple for struck previously had who workers warehouse and 2018.pdf [https://perma.cc/85JU-HUTS]. 2018.pdf 24. . Rosenfeld, Rosenfeld, [https://perma.cc/V27W-UZ4E]. . 24. Year 22. . 22. 14. . Cathie Anderson, Anderson, Cathie . 14. 42394-ckt_95-1 Sheet No. 39 Side B 06/12/2020 13:18:38 B 06/12/2020 39 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 40 Side A 06/12/2020 13:18:38 , L ’ OOD OOD IMES F NTER EUTERS , I 2 7, (Oct. , R AST F , N.Y. T OMEN (May 21, 2018), W A smattering of of A smattering IMES 31 -T UN URVEY OF URVEY OF MinimumProtestors Wage Take .S S HI , C ROM A 71 71 F have continued to receive special special to receive have continued 27 INDINGS INDINGS So while sexual violence is not a new So violence sexual while F Fast-food Strikes Widen into Social-Justice Movement Social-Justice into Widen Strikes Fast-food the corporate giant was an easy pivot. pivot. easy an was giant corporate the 28 EY EY 30 , https://www.merriam-webster.com/dictionary/McJob SHORT STRIKES ,K EBSTER when an October 2016 survey revealed an epi- an revealed survey 2016 October an when Why Fight for $15 Broughtits McDonald’s Fightto Brazil ) 6/10/2020 ) 12:03 PM -W 29 With Day of Protests, Fast-Food Workers Seek More Pay More Seek Workers Fast-Food Protests, of Day With SSOCIATES A ELETE McDonald’s, franchisees, hit with sexual harassment complaints harassment sexual with hit franchisees, McDonald’s, A. Union Backed: #MeToo McDonald’s McDonald’s #MeToo A. Union Backed: D ERRIAM The The Glass Sexual Floor: inHarassment theIndustry Restaurant OT N O ESEARCH , Owen Davis, 3(D R ,M (Apr. 15, 2015),https://www.usatoday.com/story/money/2015/04/15/fast-food-strike- (Aug.20, 2015), https://www.ibtimes.com/why-fight-15-brought-its-mcdonalds-fight- ART McJob See, e.g. See, 1 (Oct. 5, 2016), https://hartresearch.com/wp-content/uploads/2016/10/Fast-Food-Worker- 2016), 5, 1 (Oct. Even as the effort broadened its scope to low wage work in gen- low to scope its broadened effort Even as the SWALT V the employment and corporate practices that secured the quip quip the secured that practices corporate and employment the IMES ODAY 25 2020] 2020] 4O Unpacking the phenomenon begins with a short tour of the three most most three the of tour short a with begins phenomenon the Unpacking The McDonald’s Corporation has become somewhat of an emblem for for emblem an of somewhat become has Corporation The McDonald’s 26 .T ORKERS US (Oct. 5, 2016), https://www.reuters.com/article/mcdonalds-complaint/update-1-mcdonalds-franchisees- 2016), 5, (Oct. (Nov. 29, 2012), https://www.nytimes.com/2012/11/30/nyregion/fast-food-workers-in-new-york-city- demic in fast food, specifically, food, fast in demic problem in restaurants, in problem W 25. . Steven Greenhouse, Greenhouse, Steven . 25. USA 26. T Bruce . Horovitz Yamiche & Alcindor, fight-for-15-service-employees-international-union/25787045/. [https://perma.cc/YL8Z-96D9]. 27. B strikes put the conventional justifications for a work stoppage up for debate debate for up stoppage a work for justifications conventional the put strikes adaptability tactic’s the about implications intriguing carrying while also non-union, union, the to extends record track the Already, and potential. the economy. of segments and contracted examples. publicized and recent short-term strikes, dating to a series of twenty-four hour walkouts orga- hour walkouts of twenty-four to a series dating strikes, short-term (“SEIU”)-funded Union International Employees the Service by nized in began that representation and union raises for $15 campaign for Fight 2012. eral, in Merriam-Webster a spot “McJob” Survey-Memo-10-5-16.pdf [https://perma.cc/DL4E-GW3K]. [https://perma.cc/DL4E-GW3K]. Survey-Memo-10-5-16.pdf The same month, fifteen workers filed EEOC harassment complaints complaints harassment EEOC filed workers fifteen month, The same states. eight in franchisees its and McDonald’s against https://chicago.suntimes.com/2018/5/21/18392851/minimum-wage-protesters-take-fight-for-15-to- organizing and litigation scrutiny. litigation and organizing [https://perma.cc/RTJ2-VVCE] (“[A] low-paying job that requires little skill and offers little opportuni- little offers and skill little requires that job low-paying (“[A] [https://perma.cc/RTJ2-VVCE] rally-for-higher-wages.html [https://perma.cc/AR9L-93TG]. [https://perma.cc/AR9L-93TG]. rally-for-higher-wages.html ty for advancement.”). . 28. 31. . Daniel Wiessner, Wiessner, Daniel . 31. mcdonald-s-west-loop-headquarters [https://perma.cc/92K7-EEVQ]. brazil-2062147 [https://perma.ccK28M-DP2T]; Stephano Esposito, Esposito, Stephano [https://perma.ccK28M-DP2T]; brazil-2062147 Fight for $15 to McDonald’sWest Loop Headquarters hit-with-sexual-harassment-complaints-idUSL2N1CB18V [https://perma.cc/YL9M-7RSZ]. [https://perma.cc/YL9M-7RSZ]. hit-with-sexual-harassment-complaints-idUSL2N1CB18V 2014), https://rocunited.org/2014/10/new-report-the-glass-floor-sexual-harassment-in-the-restaurant- 29. . ROC-United, ROC-United, . 29. industry/ [https://perma.cc/L9KY-7W4X] (reporting harassment rates of 66%, 80%, and 78% from from 78% and 80%, 66%, of rates harassment (reporting H [https://perma.cc/L9KY-7W4X] industry/ respectively). customers, and co-workers, managers, . 30. 42394-ckt_95-1 Sheet No. 40 Side A 06/12/2020 13:18:38 A 06/12/2020 40 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 40 Side B 06/12/2020 13:18:38 , , 32 34 UT UT C HE TLANTIC ,T ,A and it had had and it 38 and the skepticism and the skepticism 36 (Sep. 18, 2018), 2018), 18, (Sep. [Vol 95:1 [Vol When Ashley Judd’s expe- When Ashley Judd’s 35 33 NTERCEPT , I This time, Fight for $15 brought the the $15 brought for Fight This time, 41 The #MeToo Moment: Blue-Collar Women Ask, ‘What Where #MeToo Came From, and Where it’s Going it’s Where and From, Came #MeToo Where #MeToo’s legal defense fund, though, did, and and did, though, fund, defense legal #MeToo’s 39 CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM note 31. McDonald’s workers strike to demand response to sexual harassment alleging unwanted touchings, propositions, and as- and propositions, touchings, unwanted alleging McDonald’s Workers are Striking Against Sexual Harassment—Tying Harassment—Tying Sexual Against Striking are Workers McDonald’s note 34. 34. note ELETE note 32. 40 The Simple Request of the McDonald’s Anti-Sexual Harassment Protests Harassment Anti-Sexual McDonald’s the of Request Simple The The ‘Click’ Moment: How the Weinstein Scandal Unleashed a Tsunami Unleashed Scandal Weinstein the How Moment: ‘Click’ The D (Sept. 20, 2018), https://prospect.org/article/mcdonald’s-workers-strike- 2018), 20, (Sept. The Radical Boldness of the McDonald’s Sexual-Harassment Strike Sexual-Harassment of the McDonald’s Boldness Radical The supra supra (Dec.20,2017), https://www.nytimes.com/2017/12/20/us/the-metoo-moment- OT supra N supra supra O IMES T ROSPECT 3(D Susan Chira Catrin & Einhorn, Wiessner, Wiessner, .P (Nov. 5, 2017), https://www.nytimes.com/2017/11/05/us/sexual-harrasment-weinstein- M ,N.Y. Id. See (Sep. 20, 2018), https://www.theatlantic.com/entertainment/archive/2018/09/the-simple- SWALT V ,A IMES See also See 72 72 4O Then, almost a year to the date, Alyssa Milano tweeted “#MeToo.” tweeted Milano Alyssa date, the to a year almost Then, In Hollywood, at least. The swift justice associated with #MeToo’s with #MeToo’s associated justice swift The least. at Hollywood, In T 37 TLANTIC conviction”). conviction”). 38. . Natasha Lennard, Lennard, Natasha . 38. Struggle Labor Their to #MeToo blue-collar-women-ask-what-about-us.html [https://perma.cc/N4QT-A5YD]. [https://perma.cc/N4QT-A5YD]. blue-collar-women-ask-what-about-us.html call-out culture did not necessarily translate to non-celebrities, translate did not necessarily culture call-out (Mar.Bennett, 24, 2019), https://www.theatlantic.com/ideas/archive/2019/03/catharine-mackinnon-what-metoo- Jessica . 36. https://theintercept.com/2018/09/18/mcdonalds-strike-sexual-harassment-me-too/ [perma.cc/VA62- https://theintercept.com/2018/09/18/mcdonalds-strike-sexual-harassment-me-too/ request-of-the-mcdonalds-antisexual-harassment-protests/570775/ [https://perma.cc/9EN8-PW3M] [https://perma.cc/9EN8-PW3M] request-of-the-mcdonalds-antisexual-harassment-protests/570775/ . [and]Covert, thus have lacked far support,not . Thomhave, been. speaking up about workplaceharassment for years Bryce . 40. . 41. not so far McDonald’s. not so far at (Sep. 18, 2018), https://www.thecut.com/2018/09/mcdonalds-sexual-harassment-strike-takes-place-in- 2018), 18, (Sep. [https://perma.cc/U6MF-M8M3]. 10-cities.html 32. . Kalena Thomhave, Thomhave, Kalena . 32. charges news reports and protests followed, but so did executives’ indifference, executives’ so did but followed, protests and reports news has Corporation McDonald’s the that claim well-practiced a by assisted franchisees. “independent” its to do with little Tarana activist feminist by in 2006 coined been actually had The phrase the surfaced, depravity Weinstein’s of Harvey reports early as Burke, but wildfire. media social became version hashtag rience with the director went public, a “dam” broke, a “dam” public, went director the with rience now twenty-five accusers to Chicago to meet, share stories, and—inured to to and—inured stories, share meet, to Chicago to accusers twenty-five now that so regularly attached to victims’ allegations of abuse turned untena- turned abuse of allegations to victims’ attached regularly so that ble. 37. . MacKinnon, MacKinnon, [https://perma.cc/JU4W-48XZ]. trump.html . 37. in 2018 lawyers from TIME’S UP partnered with the campaign in a second a second in campaign the with UP partnered TIME’S from lawyers in 2018 complaints round of has-changed/585313/ [https://perma.cc/GA9T-THAF].has-changed/585313/ . 35. N.Y. 7VF4]. 7VF4]. saults—many reported, all ignored. all reported, saults—many demand-response-sexual-harassment-charge [https://perma.cc/3F4R-VY4S]. [https://perma.cc/3F4R-VY4S]. demand-response-sexual-harassment-charge About Us?’ About (citing “theoverall lack of empathy fromthe public”and noting havethat . “McDonald’s. employees. 34. . Catherine A. MacKinnon, MacKinnon, A. Catherine . 34. 33. . 33. 39. . Hannah Giorgis, Giorgis, Hannah . 39. A 42394-ckt_95-1 Sheet No. 40 Side B 06/12/2020 13:18:38 B 06/12/2020 40 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 41 Side A 06/12/2020 13:18:38 , IMES (Sep. (Sep. T OX (Sep. 12, ALENDAR ,V C St. Louis St. Louis , N.Y. 52 AY UARDIAN D G When a strike When a strike and on Septem- 46 HE 49 L Id. ’ , T AT , N note 32. —McDonald’s workers in ten ten in workers —McDonald’s 73 73 50 That included setting up weekly weekly up setting included That supra supra 43 They also built consensus for a tactic: a a a tactic: for consensus built They also 45 Thomhave, Thomhave, SHORT STRIKES while the Chicago contingent took to the the to took contingent Chicago the while 53 The #MeToo links were explicit, plastered on on plastered explicit, were links The #MeToo 51 See also See ) 6/10/2020 ) 12:03 PM —plan next steps. next —plan ELETE note 32. 42 McDonald’s Workers Across the U.S. Stage #MeToo Protests #MeToo Stage the U.S. Across Workers McDonald’s D What’s next for #MeToo? The McDonald’s strike have an answer an have strike McDonald’s The #MeToo? for next What’s note 38. note 39. OT N supra O supra supra 3(D McDonald’s workers set to strike over sexual harassment over sexual McDonald’s to strike set workers Alex Press, The forums helped focus demands, foremost enforcement of the of the enforcement foremost focus demands, helped The forums 48 44 See See Id. Id. National Cheeseburger Day—September 18 Id. Id. SWALT V The franchisees, it suggested, had similarly comprehensive comprehensive similarly had suggested, it The franchisees, 2020] 2020] 4O For Fight for $15, it was certainly on-brand. But for an organization an organization for But on-brand. certainly was it $15, for For Fight But paperwork was never the problem. As Fight for $15 noted dryly in in noted dryly $15 As Fight for problem. the was never But paperwork 47 46. . 46. 45. . Giorgis, Giorgis, . 45. 43. . Thomhave, Thomhave, Lennard, . 43. . 44. response, “[w]hatever policy they have is not effective,” is not have they policy “[w]hatever response, 53. . 53. most obviously linked to living wages, the new focus was also acknowl- also was focus new the wages, living to linked obviously most depend- economic with two-for-one, a toxic often is pay bad that edgment abuse. continued and silence, vulnerability, ence fueling one-day strike. strike. one-day signs (using Golden Arches font) and duct tape-covered mouths. tape-covered and duct font) Arches Golden (using signs “zero-tolerance” rules already on the books, plus new training systems and and systems training new plus on the books, already rules “zero-tolerance” na- leading of “representatives with committee anti-harassment a national groups.” rights women’s tional strikers went noisier, yelling, “[h]old your burgers, hold your fries, keep keep fries, your hold burgers, your “[h]old yelling, noisier, went strikers my thighs,” your hands off (Sept. 18, 2018), nytimes.com/2018/09/18/business/mcdonalds-strike-metoo.html . 52. cities struck to start over. to start struck cities serious- very it take didn’t ly.“[T]hey . .. The owners reallydon’t representative: is care, 42. reallyI experience feellike reporting they don’t Harrell’s careTanya atall.” . corporate deflection corporate confront to began McDonald’s mid-September, in committees vote passed and train- procedures “policies, touting publicly, more the issue compa- our at harassment sexual prevent to designed specifically . . . ing ny.” 19, 2018), https://www.vox.com/the-big-idea/2018/9/18/17876024/mcdonalds-strikes-walkout-me-too “women’s meetings” in their stores that would soon attract hundreds of co- hundreds soon attract would that stores in their meetings” “women’s workers. 2018), https://www.theguardian.com/business/2018/sep/12/mcdonalds-workers-set-to-strike-over- https://nationaldaycalendar.com/national-cheeseburger-day-september-18/ [https://perma.cc/55H7- protocols. [https://perma.cc/BJZ2-B5W8]. [https://perma.cc/BJZ2-B5W8]. ber 18, 2018—National Cheeseburger Day Cheeseburger ber 18, 2018—National 51. . Rachel Abrams, Abrams, Rachel 2019). 9, Nov. visited (last 9M55] . 51. [https://perma.cc/F3YB-DG5C] (“[R]aising wages is a necessity to fighting sexual harassment.”). harassment.”). sexual fighting to necessity a is wages (“[R]aising [https://perma.cc/F3YB-DG5C] 50. . 50. sexual-harassment [https://perma.cc/H6FT-5V2R]. [https://perma.cc/H6FT-5V2R]. sexual-harassment 47. . A.P., A.P., . 47. 49. . 49. 48. . 48. 42394-ckt_95-1 Sheet No. 41 Side A 06/12/2020 13:18:38 A 06/12/2020 41 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 41 Side B 06/12/2020 13:18:38 EW IMES IMES T T , N (May 16, , N.Y. , N.Y. IMES T and especially especially and , L.A. 56 [Vol 95:1 [Vol 54 Those procedures, however, relied on a a on relied however, Those procedures, 59 B. Non-Union: Google Google B. Non-Union: CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM Unions Are Gaining a Foothold at Digital media Companies media at Digital Foothold a Gaining Are Unions ELETE Daniel in the Lion’s Den: Platform WorkersTechon Take Giants note 32. White-collar workers are turning to labor unions labor to turning are workers White-collar D Silicon Valley is a different story. There, high salaries, salaries, There, high story. different is a Valley Silicon Google Workers RejectSilicon Valley IndividualisminWalkout 57 OT note 58. note 41. 41. note N supra management flailed, launching three increasingly fraught fraught increasingly three launching flailed, management O 60 supra supra 3(D SWALT V 74 74 4O As scripted, it was over in a day. Workers like Adriana Alvarez who, who, Alvarez Adriana like Workers a day. in over was it scripted, As The McDonald’s activism can be couched as another expression of la- of expression another as can be couched activism The McDonald’s Search giant Google seemed well-positioned to continue the trend, in- trend, the continue to well-positioned seemed Google giant Search 58 55 . https://newlaborforum.cuny.edu/2019/03/02/daniel-in-the-lions-den/ 2019), F. (Jan. AB 56. . Alana Semuels, Semuels, Alana . 56. 55. . Covert, Covert, . 55. free food, a near-mythic ethos of individualism, and old-fashioned anti- old-fashioned and individualism, of ethos a near-mythic food, free “al- not completely if difficult” “wildly organizing labor made unionism ien.” 2013),latimes.com/business/la-xpm-2013-may-16-la-fi-union-white-collar-20130516-story.html like many, doubled as Fight for $15 organizers, described her motivation motivation her described organizers, $15 for as Fight doubled many, like to walk: not ready those represent to as a desire second and “anger” as first to see They need that. to feel need been harassed who have “These women know what, ‘You say, up and stand to okay it’s and alone not they’re that about Do something me. to happen shouldn’t it and me to happened this it.’” (Dec. 26, 2017), https://www.nytimes.com/2017/12/26/business/media/unions-digital-media.html https://www.nytimes.com/2017/12/26/business/media/unions-digital-media.html 2017), 26, (Dec. [https://perma.cc/448C-YDLA]. https://www.nytimes.com/2018/11/06/business/google-employee-walkout-labor.html 2018), 6, (Nov. baseline of bottom-up empathy, and by 2017, the scope and intensity of of and intensity scope by 2017, the and empathy, of bottom-up baseline complaints When system. the to overwhelm started grievances employee corporating a democratic sheen into work life that included a company- included that life work into sheen a democratic corporating “T.G.I.F” regularized and concerns to address process petition sponsored the CEO. with Q&A sessions online journalism. online L 54. . Thomhave, Thomhave, . 54. skies, flying a “MCDONALDS: HARASSMENT” SEXUAL STOP banner University. Hamburger around and around bor’s multi-decade march beyond its blue-collar base and into the private the private and into base blue-collar its beyond march multi-decade bor’s 58. . Julianne Tveten, Julianne . 58. [https://perma.cc/DZQ9-4PTQ]. that pro-LGBT content was being quietly marginalized on YouTube spilled spilled on YouTube marginalized quietly being was content pro-LGBT that into the press, sector service economy. So can the movement’s more recent moves into into moves recent more movement’s can the So economy. service sector insurance, law, medicine, like industries collar white 59. . Noam Scheiber, Scheiber, Noam [https://perma.cc/ZR98-K657]. . 59. 60. . Tveten, Tveten, . 60. [https://perma.cc/9M5C-6VCY]. [https://perma.cc/9M5C-6VCY]. 57. . Matthew Sedacca, Sedacca, Matthew . 57. 42394-ckt_95-1 Sheet No. 41 Side B 06/12/2020 13:18:38 B 06/12/2020 41 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 42 Side A 06/12/2020 13:18:38 , IMES By ,N.Y. , N.Y. T 67 Father of Father of Trans- 69 , N.Y. (Oct. 26, 2018), 2018), 26, (Oct. IMES It was not the only post- not the only was It T 64 75 75 “[R]eal power over decision- over power “[R]eal Google Workers Fume Over Executives’ Pay- Executives’ Over Fume Workers Google By 2019, most had come to view view to come had most 2019, By 62 61 , N.Y. How Google Protected Andy Rubin, the ‘ the Rubin, Andy Protected Google How 65 SHORT STRIKES 63 ) 6/10/2020 ) 12:03 PM 59. They were also increasingly feared as tools for retaliation and and retaliation for tools as feared increasingly also were They 59. Google Trying Is Too Hard (or Not Hard Enough)to Diversify . ] Google Faces Internal Backlash Over Handling of Sexual Assault Sexual of Handling Over Backlash Internal Faces Google ELETE note Whythe Google WalkoutWas a Watershed Momentin Tech YouTube’s Restricted Mode is Hiding Some LGBT Content [Update] Content LGBT Some Hiding is Mode Restricted YouTube’s D note 59. (Oct. 25, 2018), https://www.nytimes.com/2018/10/25/technology/google- OT N O supra supra supra IMES T 3(D One, Claire Stapleton, returned to her computer and, using the the using and, computer to her returned Stapleton, One, Claire That week, a top post on “Memegen,” a company photo-sharing interface, was an image an image was interface, photo-sharing a company “Memegen,” on post a top week, That And by then, harassment issues were just a starting point. Celie Celie point. starting a just were issues harassment then, And by 66 68 Id. Id. Id. SWALT V (Mar. 17, 2017), https://gizmodo.com/youtubes-restricted-mode-is-hiding-some-lgbt-content- 2017), 17, (Mar. (Oct. 31, 2018), https://www.nytimes.com/2018/10/31/technology/google-sexual-harassment- 2020] 2020] 4O What that something might be emerged from a snowball of events events of snowball a from emerged be might something that What Enraged employees confronted Google executives at the Friday staff staff the Friday at executives Google confronted employees Enraged (Mar. 9, 2018), https://www.nytimes.com/2018/03/09/technology/google-diversity-lawsuits.html https://www.nytimes.com/2018/03/09/technology/google-diversity-lawsuits.html 9, 2018), (Mar. IZMODO IMES IMES 69. . Farhad Manjoo, Manjoo, Farhad . 69. harassment “hero’s farewell” either. farewell” “hero’s harassment starting with an October 25, 2018 report that executive Andy Rubin was Andy Rubin was executive that 2018 report 25, an October with starting and feted then responsible, found abuse, sex workplace for investigated door. his way out the on $90 million with gifted Monday, 200 employees had signed on. By Wednesday, 1,500 were ready ready 1,500 were By Wednesday, on. signed had employees 200 Monday, to walk. 63. . Scheiber, Scheiber, [https://perma.cc/7KV3-GWTE . 63. 64. Benner, Katie & Wakabayashi Daisuke . Android,’ N.Y. Android,’ division. Daisuke Wakabayashi, meeting. (Nov. 7, 2018), https://www.nytimes.com/2018/11/07/technology/google-walkout-watershed-tech.html the company’s communication pathways cynically, effectively dead-end dead-end effectively cynically, pathways communication the company’s feelings.” expressing for “mechanisms T making,” remarked the longtime head of an internal research group, re- group, research internal an of head the longtime remarked making,” different. something quired T walkout.html [https://perma.cc/M9FJ-BCKZ]. [https://perma.cc/M9FJ-BCKZ]. walkout.html . 67. . 68. 61. . Libby Watson, Watson, Libby . 61. G public apologies in just fourteen hours. fourteen just in apologies public https://www.nytimes.com/2018/10/26/technology/sexual-harassment-google.html [https://perma.cc/5WHN-P67K]. 66. al., et Conger Kate . forming the maze of narratives into concrete calls for change would have have change would for calls into concrete narratives of maze the forming and market- management, but the technical, for complex been outlandishly O’Neil-Hart, from marketing, took charge by sorting people into Google Google into people sorting by charge took marketing, from O’Neil-Hart, resonate to comments allowing Google Docs, into complaints Groups and time. real in screens of thousands across to winnow and concerns [https://perma.cc/HD2C-PF8F]. [https://perma.cc/HD2C-PF8F]. sexual-harassment-andy-rubin.html [https://perma.cc/W6BD-QKPA]. [https://perma.cc/W6BD-QKPA]. sexual-harassment-andy-rubin.html company’s intranet, created a discussion forum to organize a strike. to organize forum a discussion created intranet, company’s of an ecstatic, confetti-covered game show contestant with the caption: “[G]ot caught sexually harass- sexually caught “[G]ot caption: the with contestant show game confetti-covered ecstatic, an of ingemployee.” Daisuke WakabayashiKate & Conger, 65. . 65. 1793382337 [https://perma.cc/5RVR-6S3J]. outs After Sexual Harassment Claims Harassment Sexual After outs 62. . Scheiber, Scheiber, . 62. 42394-ckt_95-1 Sheet No. 42 Side A 06/12/2020 13:18:38 A 06/12/2020 42 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 42 Side B 06/12/2020 13:18:38 , 76 71 Stephanie Stephanie 70 A hyper-local A hyper-local (Nov. 1, 2018), 1, 2018), (Nov. 78 OST There was also a a also There was 72 77 Overnight, the 1,500 the 1,500 Overnight, .P 75 [Vol 95:1 [Vol ASH note 75. 75. note ,W supra —and, importantly, a plan. On a plan. importantly, —and, 73 (Nov.2018), 1, Google employees worldwide walk out over allegations As other time zones caught up, so did did up, so caught zones time As other Google Workers Stage Mass Walkoutto Protest Handling 74 Google walkout: global protests after sexual misconduct misconduct sexual after protests global walkout: Google UARDIAN (Nov. 1, 2018), https://www.bloomberg.com/news/articles/2018- CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM We’rethe Organizersof the Google Walkout.Are Here Our Demands note74. note 74; Carville & Grant, Grant, & Carville 74; note ELETE G supra supra D note 59. HE LOOMBERG note59. OT N , B O supra supra 3(D ; Olivia Carville & Nico Grant, Grant, Nico & Carville ; Olivia , T (Nov. 1, 2018), https://www.thecut.com/2018/11/google-walkout-organizers-explain- 1, 2018), (Nov. Id. Id. Id. SWALT V the latter a “shadow work force” doing the same jobs for less mon- for less jobs the same doing work force” a “shadow the latter UT 79 76 76 4O Clues to the expansion could perhaps be spotted in how organizers how organizers in spotted be perhaps could expansion the to Clues Ultimately, the crowds whittled discussion into five demands, includ- demands, five into discussion whittled crowds the Ultimately, C HE unity played an even bigger part. Strikers left notices explaining, “I’m not not “I’m explaining, notices left Strikers part. bigger an even played unity contrac- and Googlers other with . . . out walking I’m because desk my at 71. . 71. 72. al., et Stapleton . Claire ey, fewer benefits, and more indignities. Though they outnumbered direct direct outnumbered they Though indignities. and more ey, fewer benefits, https://www.theguardian.com/technology/2018/nov/01/google-walkout-global-protests-employees- couched the day’s event in a press release, more of a solidarity action with action with of a more solidarity in a release, press event the couched day’s in strength their using who are and others workers fast-food “teachers, Thursday, November 1, 11:10 a.m. Tokyo time, workers in Japan left their their left in Japan workers Tokyo time, 1, 11:10 a.m. November Thursday, the street. for desks and headed 11-01/google-workers-stage-mass-walkout-to-protest-handling-of-sexual-misconduct [per- 11-01/google-workers-stage-mass-walkout-to-protest-handling-of-sexual-misconduct ing ending mandatory arbitration for discrimination claims, adopting pay pay adopting claims, for discrimination arbitration mandatory ing ending globally a “uniform, establishing measures, transparency and harassment Chief “the promoting misconduct,” sexual reporting for process inclusive Em- “an appointing and CEO,” the to directly answer to Office Diversity Directors. of the Board to Representative” ployee 70. . 70. T Messages like “Time’s Up tech” and “Not Ok, Google” dotted sidewalks sidewalks dotted Google” Ok, and “Not tech” Up “Time’s like Messages outposts. corporate separate forty-seven surrounding ing talents that landed everyone at Google in the first place. first the in Google at everyone landed that talents ing to 20,000 worldwide. had ballooned list strike Stapleton’s on listed names https://www.washingtonpost.com/business/2018/11/01/google-employees-worldwide-begin-walkout- Parker, a YouTube policy specialist, called the process “really fun.” “really process the called specialist, policy a YouTube Parker, sexual-harassment-scandals [https://perma.cc/YWD8-SNJ5]. [https://perma.cc/YWD8-SNJ5]. sexual-harassment-scandals tors,” numbers to make real change” than a tech-centric uprising. than a tech-centric change” real to make numbers 79. . Weaver & Hern, Hern, & Weaver . 79. Googlers in cities stretching from Singapore to Zurich, Haifa, Berlin, Lon- Berlin, Haifa, Zurich, to Singapore from stretching cities in Googlers India. New York, and Hyderabad, don, Dublin, over-allegations-sexual-harassment-inequality-within-company/ [https://perma.cc/7W8G-Z4VM]. 75. . 75. of Sexual Misconduct name—Google Walkout for Real Change for Walkout name—Google 78. . Sheiber, Sheiber, . 78. demands.html [perma.cc/MH24-DDZP]. 77. . Weaver & Hern, Hern, & Weaver . 77. company within inequality harassment, of sexual 73. Dwaskin, Elizabeth & Telford . Taylor 76. . Scheiber, Scheiber, ma.cc/DM2D-WY23]. . 76. Hern, 74. Alex & Weaver Matthew . allegations 42394-ckt_95-1 Sheet No. 42 Side B 06/12/2020 13:18:38 B 06/12/2020 42 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 43 Side A 06/12/2020 13:18:38 , . ’ , 84 ED 82 F (Feb. (Feb. EDIUM OVERNORS .G D (Mar. 6, 2019), 6, 2019), (Mar. , B Continue, M Continue, and often breathtak- often and 87 Google employees are so angry angry so are employees Google TLANTIC “gig” jobs have become become have jobs “gig” 83 85 ,A 77 77 14–18(2019). exhaustion, Jillian D’Onfro, D’Onfro, Jillian IG 86 Asked whether the week’s events events the week’s Asked whether G 81 See also also See SHORT STRIKES From Amazon to Uber: Defining Employment in the Modern C. Contracted: Uber Uber C. Contracted: USTLE AND The Servant Economy , H Google’s Shadow Temps Who Force: Outnumber Work Full-Time ) 6/10/2020 ) 12:03 PM The Uber drivers forced to sleep in parking lots to make a decent living note 66. 66. note ELETE Google Workers Lost a Leader, But the Fight Will Will Fight the But Leader, a Lost Workers Google D AVENELLE . 1673, 1680–91 (2016). (2016). 1680–91 1673, . (May 28, 2019), https://www.nytimes.com/2019/05/28/technology/google- 2019), 28, (May Sundar Pincai of Google: ‘Technology Doesn’t Solve Humanity’s Problems Humanity’s Solve Doesn’t ‘Technology of Google: Pincai Sundar R OT supra (May 2019),https://www.federalreserve.gov/publications/files/2018-report- EV N O (Nov. 29, 2018), https://www.cnbc.com/2018/11/29/google-worker-strike- 2018), 29, (Nov. IMES T , Kari Paul, Paul, , Kari L. R 88 3(D (May 8, 2019), theguardian.com/technology/2019/may/07/the-uber-drivers-forced-to- COM YSTEM LEXANDREA S (Nov. 8, 2018), nytimes.com/2018/11/08/business/sundar-pichai-google-corner-office.html nytimes.com/2018/11/08/business/sundar-pichai-google-corner-office.html 2018), 8, (Nov. , N.Y. Report on the Economic Well-Being of U.S. Households in 2018 in Households U.S. of Well-Being Economic the on Report See, e.g. See, SWALT V ,96 B.U. ,96 80 IMES UARDIAN 2020] 2020] 4O Workers seemed to also have internalized that lesson. A strike fund, fund, A strike lesson. that internalized have also to seemed Workers If Google forever changed the search for data, Uber, its San Francisco- its Uber, data, for search the changed Google forever If The company appeared at once stunned and philosophical. Executives Executives philosophical. and once stunned at appeared The company T ,CNBC. G ESERVE HE Valley elevator pitch—also altered the complexion of modern work. modern of complexion the altered pitch—also elevator Valley 86. . 86. Employees suggested Silicon Valley had lost some of its idealism, CEO Sundar Pichai Pichai Sundar CEO idealism, its of some lost had Valley Silicon suggested hu- solve doesn’t Technology is: which here, thing deeper to “a referred problems.” humanity’s with deal to has . humanity . . problems manity’s T started with the $100,000 severance from just-departed activist Liz Fong- Liz activist just-departed from severance $100,000 the with started time. next for donations taking already Jones, was based neighbor, forever changed the search for stuff. But finger taps for for But taps finger for stuff. the search changed forever based neighbor, Silicon is a standard X” for whatever—”Uber or really, fix-its, food, cars, https://www.theatlantic.com/technology/archive/2019/03/what-happened-uber-x-companies/584236/ 82. . David Gelles, Gelles, David . 82. N.Y. synonymous with “financial fragility,” “financial with synonymous 80. . Daisuke Wakabayashi, Daisuke . 80. Probably not for the better. Stripped of the minimal legal protections and and protections legal minimal the of Stripped the better. for not Probably status, “employee” with come that nets economic employees, all were “barred” from staff meetings, parties, and promo- and parties, meetings, staff from “barred” were all employees, tions. R 13, 2019), https://medium.com/s/story/google-workers-lost-a-leader-but-the-fight-will-continue- 88. . 88. had already apologized repeatedly. apologized had already 85. . Keith Cunningham-Parmeter, Keith . 85. ing sacrifice. discussions-on-project-dragonfly-censored-search.html [https://perma.cc/L8GJ-D6KG] (“19 current and and current (“19 [https://perma.cc/L8GJ-D6KG] discussions-on-project-dragonfly-censored-search.html 81. . Conger et al., al., et Conger [https://perma.cc/7FFN-PY28]. temp-workers.html . 81. economic-well-being-us-households-201905.pdf [https://perma.cc/R85C-APSA]. [https://perma.cc/R85C-APSA]. economic-well-being-us-households-201905.pdf Economy [https://perma.cc/XZ4B-WGD3] (analyzing the impact and “[f]ates of 105 Uber-for-X [c]ompanies”). [https://perma.cc/EWS7-GSY5]. [https://perma.cc/EWS7-GSY5]. about how Google handled plans for a censored Chinese search engine, some are talking about a a about talking are some engine, search Chinese a censored for plans handled Google how about strike c487aa5fd2ba [https://perma.cc/9YQ8-Z2P3]. [https://perma.cc/9YQ8-Z2P3]. c487aa5fd2ba sleep-in-parking-lots-to-make-a-decent-living [https://perma.cc/B2D9-TPSC]. 84. . Alexis C. Madrigal, Madrigal, C. Alexis two formeremployees had pledged $115,000 tothepotential . fundin the first threehours”). 84. 83. . Liz Fong-Jones, Fong-Jones, Liz . 83. 87. . A . 87. 42394-ckt_95-1 Sheet No. 43 Side A 06/12/2020 13:18:38 A 06/12/2020 43 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 43 Side B 06/12/2020 13:18:38 , 91 or, or, 95 96 (Feb. 14, EWS N (Jan. 31, 2017), 2017), 31, (Jan. (Mar. 26,2019), Uber drivers strike strike drivers Uber (Feb. 19, 2016), AB EED IMES L F (Oct. 9, 2018), T IMES ITY UZZ T COM , C , B and even “buycotts” and even “buycotts” , N.Y. 92 [Vol 95:1 [Vol , Chloe Taylor, , N.Y. intermittent strikes (spark- , CNBC. 90 See, e.g. See, 89 L.A.’s Rideshare Drivers United 98 purchase by tipping twenty-two cents cents twenty-two by tipping purchase There have also been full strikes, usually usually strikes, full been also There have and 93 . (Dec. 11, 2018), https://www.chicagotribune.com/business/ct- 2018), 11, . (Dec. RIB CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT .T ) 6/10/2020 ) 12:03 PM Instacart Workers’ Tips Revolt Over Instacart (May 16, 2019), https://wjla.com/news/local/uber-and-lyft-drivers- ‘We’re being mistreated’: Instacart shoppers complain of pay cuts as HI COM ,C ELETE ‘I’m Really Struggling’: Facing pay cuts, some ride-haling drivers prepare These Instacart Workers Want You to Leave Them a 22-Cent Tip a 22-Cent Them to Leave You Want Workers Instacart These D Uber, Lyft Drivers manipulate fares at Reagan National causing artificial Uber Drivers Up Against the App the Against Up Drivers Uber Why L.A.’s Ride-Hail DriversWent onStrike OT What You Need to Know About #DeleteUber About to Know Need You What N O (Mar.23, 2019, 5:00https://www.latimes.com/business/technology/la-fi-tn- AM), 3(D IMES and linked to an event like the Super Bowl in New York in New Bowl Super the like an event to and linked (Jan. 17,2019), https://www.bloomberg.com/news/articles/2019-01-17/these-instacart- , ABC7-WJLA. With nearly 3,000 members, 3,000 nearly With 94 SWALT V 97 , L.A. T 78 78 4O But it’s not just press attention. Over the years, such incidents have have incidents such the years, Over attention. press just not But it’s Yet, increasingly the apps that structure digital work are also structur- also are work digital structure that apps the increasingly Yet, The Southern Californian action seemed to mark a tipping point. By By point. a tipping mark to seemed action Californian The Southern LOOMBERG https://perma.cc/4YGH-BGHS]. B 93. . Josh Eidelson, Eidelson, Josh . 93. regional become fodder for concrete forms of collective action, including partial partial including action, collective of forms concrete for fodder become size), a certain under orders (rejecting strikes early last year, a sudden fare cut in Los Angeles and Orange counties. Orange and Angeles in Los cut fare sudden a year, last early https://www.nytimes.com/2016/02/21/nyregion/uber-drivers-up-against-the-app.html biz-instacart-shopper-complaints-20181206-story.html [https://perma.cc/52FY-KAS2]. [https://perma.cc/52FY-KAS2]. biz-instacart-shopper-complaints-20181206-story.html ing opportunities for self-organization and push-back. So, while opaque, opaque, while So, push-back. and self-organization for ing opportunities unprecedented companies offer practices pay and hiring algorithm-driven https://www.cnbc.com/2018/10/09/uber-drivers-strike-across-the-uk-in-protest-over-workers- 89. . Caroline O’Donovan, O’Donovan, Caroline . 89. boycotts (#DeleteUber became a national story), a national became (#DeleteUber boycotts https://www.nytimes.com/2017/01/31/business/delete-uber.html [https://perma.cc/N8V6-C2BC]. ing short surges by turning off the app en masse for a “minute or two”), or “minute a for masse en app the off turning by surges ing short 2019), buzzfeednews.com/article/carolineodonovan/Instacart-workers-revolt-over-tips-reveals-a-big- 2019), 2019, once isolated skirmishes had begun to coalesce with the help of city- of the help with coalesce to begun had skirmishes isolated 2019, once the of some against drivers unite to positioned groups organizing specific mental and harassment like economy, gig the of dysfunctions deeper health. (encouraging shoppers to protest protest to shoppers (encouraging pay). base maintain to plus cash 96. . Johana Bhuiyan, Bhuiyan, Johana . 96. https://www.citylab.com/transportation/2019/03/uber-lyft-nyc-la-driver-wage-strike/585715/ uber-driver-strike-la-pay-cut-20190323-story.html [https://perma.cc/X5CA-EA6P] business flexibility, the instability has led workers to operate like guerrilla guerrilla like operate to workers led has instability the flexibility, business some- can that “adjustments” app unfavorable troubleshooting teams, H.R. press. unflattering into translated be times [ fares-at-reagan-national [https://perma.cc/W2ZM-HVRE]. workers-want-you-to-leave-them-a-22-cent-tip [https://perma.cc/9X7R-ALSX]. 90. . Alexia Elejalde-Ruiz, Elejalde-Ruiz, Alexia problem [https://perma.cc/V9GJ-JLRB]. . 90. model to new shifts company to strike to 91. . Sam Sweeney, Sam . 91. surges price 92. . Mike Isaac, Isaac, Mike . 92. 95. . Alan Feuer, Feuer, Alan [https://perma.cc/P7QZ-K36T]. rights.html . 95. [https://perma.cc/C3MD-84F4]. [https://perma.cc/C3MD-84F4]. 97. . Sara Holder, Holder, Sara . 97. across the UK in protest over workers’ rights workers’ over protest in UK the across 94. In many cases the . “region” has been abroad. 42394-ckt_95-1 Sheet No. 43 Side B 06/12/2020 13:18:38 B 06/12/2020 43 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 44 Side A 06/12/2020 13:18:38 , , 99 HE IMES , T T , N.Y. (Mar. 26, ,N.Y. LATE , S Hitting that fig- that Hitting 103 It also helped organizers organizers helped also It and the various driver driver the various and 101 104 79 79 “I’m Pretty Sure That I’m Losing Money at at Money Losing I’m That Sure Pretty “I’m —the mere opportunity to talk to to talk to opportunity mere —the 100 Uber Founder Travis Kalanick Resigns as C.E.O. as Resigns Kalanick Travis Founder Uber netting disgraced founder Travis Travis founder disgraced netting 102 Injecting dissension into a major news news major a into dissension Injecting April Glaser, Glaser, April 105 SHORT STRIKES Mike Isaac, Isaac, Mike (May 7, 2019, 2:00 AM), see also (Mar. 26, 2019, 3:23 PM), Uber Warns in IPO Filing That Its Drivers Will Be Even Less Happy Less Even Be Will Drivers Its That Filing IPO in Warns Uber ) 6/10/2020 ) 12:03 PM see also see OST How the Promise of a $120 Billion Uber I.P.O. Evaporated I.P.O. Uber Billion a $120 of Promise the How ELETE ‘They treat us like crap’: us like treat ‘They of on eve powerless and poor feel drivers Uber UARDIAN D note 96; note 98. Uber and Lyft Slashed Wages. Now California Drivers are Protesting Their Their Protesting are Drivers California Now Wages. Slashed Lyft and Uber As Uber Prepares to Go Public, This Man Is Racing to Clean It Up It Clean to Racing Is Man This Public, Go to Prepares Uber As OT note 97. N Uber drivers plan shutdown over ‘poverty wages’ as company goes public goes as company wages’ ‘poverty over plan shutdown drivers Uber O .P supra supra supra G 3(D ASH HE (June 21, 2017), https://www.nytimes.com/2017/06/21/technology/uber-ceo-travis- (Apr. 11, 2019, 10:02 PM), https://www.bloomberg.com/news/articles/2019-04-12/uber- PM), 10:02 2019, 11, (Apr. (Apr. 24, 2019, 4:16 PM), https://www.theguardian.com/technology/2019/apr/24/uber- SWALT V IMES T 2020] 2020] 4O RDU’s challenge was to transform the relatively ad hoc, small, and and ad hoc, small, relatively the transform to was challenge RDU’s The goal was $120 billion, $120 was The goal (Mar. 3, 2019), https://www.nytimes.com/2019/03/03/technology/uber-ipo-legal-issues.html https://www.nytimes.com/2019/03/03/technology/uber-ipo-legal-issues.html 2019), 3, (Mar. ,W , T UARDIAN LOOMBERG IMES collectives did not want Uber’s spin on rideshare work to have any role in in role any have to work rideshare on spin Uber’s want not did collectives narrative. redemption a at attempt the company’s and united large, planned, relatively a into years of previous strikes isolated day. offering May 8, on strike IPOs other drivers had already generated discussions about a Rideshare Bill of of Bill a Rideshare about discussions generated already had drivers other commissions. Uber cap on a state and Rights story would naturally attract mainstream attention but social media, espe- media, social but attention mainstream attract naturally would story G (May 15,2019), https://www.nytimes.com/2019/05/15/technology/uber-ipo-price.html [https://perma.cc/24B9-3JQT]. turn attention to an unmatched opportunity for drivers to make their case to to case their to make drivers for opportunity an unmatched to attention turn IPO. Uber’s the public: B Kalanick well over $8 billion, replacement CEO Dara Khosrowshahi be- Khosrowshahi CEO Dara replacement billion, $8 over well Kalanick nothing. drivers and most million, tween $80 and $100 104. . Kate Conger, Conger, Kate . 104. 98. . Faiz Siddiqui, Siddiqui, Faiz . 98. (“RDU”) was further along than most, thanks in part to a proprietary app app to a proprietary in part thanks than most, along further was (“RDU”) other. each crucially, and, organizers with communicate drivers letting in seventy less made driver issue—one immediate the were cuts fare While in forty-five make to he used than hours https://www.theguardian.com/technology/2019/may/07/uber-drivers-feel-poor-powerless-ipo-looms N.Y. T drivers-strike-ipo [https://perma.cc/Z489-UXJ9]. https://www.washingtonpost.com/technology/2019/03/26/uber-lyft-slashed-wages-now-california- ure already required an image makeover, image an required ure already 2019, 1:18 PM), https://slate.com/technology/2019/03/uber-lyft-strike-ipo-los-angeles-san- 103. . Michael Sainato, Sainato, Michael . 103. [https://perma.cc/QQ6P-3YDX]. kalanick.html [https://perma.cc/373Z-CTNC]. The average bonus for an eligible worker was $273. $273. was worker eligible an for bonus average The [https://perma.cc/373Z-CTNC]. kalanick.html Eidelson, & Josh Brustein Joshua ipo-filing-warns-that-drivers-will-be-even-less-happy [https://perma.cc/94M9-H6P5]. [https://perma.cc/94M9-H6P5]. ipo-filing-warns-that-drivers-will-be-even-less-happy 105. . Kari Paul, Paul, Kari . 105. [https://perma.cc/AY3E-JZBE]; [https://perma.cc/AY3E-JZBE]; francisco.html [https://perma.cc/VT46-7V3P] (describing “in-house technology that . . . allows [RDU] [RDU] . allows . . that technology “in-house (describing [https://perma.cc/VT46-7V3P] francisco.html 102. et al., Isaac Mike . IPO drivers-are-protesting-their-ipos/ [https://perma.cc/48CW-DRD5]. [https://perma.cc/48CW-DRD5]. drivers-are-protesting-their-ipos/ 100. . Siddiqui, Siddiqui, to reach out to drivers”). . Holder, 100. . 101. 99. . Bhuiyan, . 99. the End of the Day”: Two Uber and Lyft drivers explain why they went on strike went they why explain drivers Lyft and Uber Two of the Day”: the End 42394-ckt_95-1 Sheet No. 44 Side A 06/12/2020 13:18:38 A 06/12/2020 44 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 44 Side B 06/12/2020 13:18:38 , , 108 109 (May (May LATE ,S But their their But , https://drivers- 114 Workers who who Workers and Chicago’s and Chicago’s May 8th Los Angeles Angeles Los 8th May NITED 106 112 U , 11:34 8, 2019, (May CNN (May10, 2019, 1:33 PM), 107 RIVERS LATE Even demands differed differed Even demands [Vol 95:1 [Vol D 116 , S 110 113 The largest gig worker strike in in strike worker gig The largest 115 IDESHARE , R note99, (noting the central roleof“a closed Facebookcommunity CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM Why Uber and Lyft drivers are striking are drivers Lyft and Uber Why ELETE supra supra Uber And LyftDrivers Are Striking—And Call On Passengers Boycott To note 109. D Why the Uber Strike Was a Triumph Was Strike Uber the Why the San Francisco-based Gig Workers Rising calling for for calling Rising Workers Gig Francisco-based the San Uber Drivers’ Day of Strikes Circles the Globe Before the Company’s I.P.O. OT The Ride-Hail Strike Got Just Enough Attention to TerrifyUber N 111 note 105. O supra ,Glaser, ,Glaser, 3(D supra (May 8, 2019), https://www.nytimes.com/2019/05/08/technology/uber-strike.html Id. See, e.g. See, Id. SWALT V 80 80 4O IMES Word, and buy-in from various driver collectives, spread quickly. spread collectives, driver various from and buy-in Word, All told, strikers likely numbered in the hundreds, a minuscule relative relative minuscule a hundreds, the in numbered likely strikers told, All T 116. . April Glaser, Glaser, April . 116. 107. . Veena Dubal, Dubal, Veena groupdrivers for only”). . 107. N.P.R.2019,8, (May 7:05https://www.npr.org/2019/05/08/721333408/uber-and-lyft-drivers-are- AM), expressed interest or had questions could then be funneled into Signal or or Signal into funneled be then could questions or had interest expressed organizing. person-to-person for groups WhatsApp 115. . 115. [https://perma.cc/PZ74-LPCW]. https://slate.com/technology/2019/05/uber-strike-victory-drivers-network.html history was also, for most participants, their first. their participants, most for also, history was 106. . 106. Atlanta drivers logged-off hours. for twelve logged-off drivers Atlanta cially Facebook ads, allowed for more direct targeting. direct more for allowed ads, Facebook cially the across spread point that had by infrastructure local That a genuinely developed that plans and banners disparate the in apparent became country noon and shutdown hour twenty-four a RDU planned While there. from picket at LAX, theYork New Taxi Workers Alliance targetedjust the City. Long Island Uber HQ in of outside rallying rush before morning reforms ranging from health insurance to transparency, to insurance health from ranging reforms total the New York Times politely described as “modest.” described politely Times York the New total united.org/strike [https://perma.cc/Q4P2-4KXU]. [https://perma.cc/Q4P2-4KXU]. united.org/strike striking-and-call-on-passengers-to-boycott [https://perma.cc/273B-RHSC]. [https://perma.cc/273B-RHSC]. striking-and-call-on-passengers-to-boycott voices reverberated. The Times also reported on drums, smoke flares, and and flares, smoke drums, on reported also The Times reverberated. voices Francisco, in San streets clogged and bands brass London, in East chants Paulo, São in Melbourne, scenes and defiant support, political widespread Bridge. Brooklyn the and across Queens, 114. . 114. 9, 2019, 11:51 AM), https://slate.com/technology/2019/05/uber-strike-impact-gig-worker-protest.html https://slate.com/technology/2019/05/uber-strike-impact-gig-worker-protest.html AM), 11:51 2019, 9, Rideshare Advocates demanding raises, a driver cap, and a fair way to ap- and a fair cap, a driver raises, demanding Advocates Rideshare in Uber-speak). (“deactivations” peal firings somewhat, with RDU focused on a minimum wage, commission cap, and and cap, commission wage, minimum a on focused RDU with somewhat, receipts, clearer 109. . Laurel Wamsley, Wamsley, Laurel . 109. [https://perma.cc/DY5M-C8L9]. [https://perma.cc/DY5M-C8L9]. 108. RDU’s map of participatingcities . listedleast at 10 different groups. RideshareStrike National & of Day Action 113. . Kate Conger, Conger, Kate . 113. 112. . Paul, Paul, . 112. AM), https://www.cnn.com/2019/05/07/tech/uber-driver-strike-ipo/index.html [https://perma.cc/YX42- N.Y. 110. O’Brien, Ashley Sara . 111. . Wamsley, Wamsley, RERR]. . 111. 42394-ckt_95-1 Sheet No. 44 Side B 06/12/2020 13:18:38 B 06/12/2020 44 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 45 Side A 06/12/2020 13:18:38 See See (May The Psy- The IMES ETWORKED T N ,N.Y. OOK Finally, strikes strikes Finally, L Can the One-DayStrike 122 . (May22,2017) and its RAGILITY OF 117 EV F . 744, 754 (1989) (finding “a “a (finding (1989) 754 744, . R ECOND EV .R OSTON Max Fraser, Fraser, Max OC :AS ,B .S OWER AND M P Framing Processes and Social Movements: Movements: Social and Processes Framing 81 81 HE and short strikes—sandwiching strikes—sandwiching and short See also also See Labor Debates: Assessing the Fight for $15 $15 for the Assessing Fight Labor Debates: , 54 A :T 121 AS G . 611 (2000). . 611 (2000). . 275, 281-82 (1980) (“[Strikes] can, after a very short short very a after can, (“[Strikes] (1980) 281-82 275, . OC Further, strikes get attention. The press press The attention. get strikes Further, 232-33 (1988); Nigel Nicholson & John Kelly, Kelly, John & Nicholson Nigel (1988); 232-33 EAR ONSEQUENCES The Rightto Strike T .S 120 C EHAV SHORT STRIKES . J. 365 (2017). Robert Bruno, EV B (2014). .R A quick turnaround reduces the likelihood of of the likelihood reduces A quick turnaround TUD NN 119 .S ) 6/10/2020 ) 12:03 PM OLIDARITY S ISSENT AB WITTER AND , 26 , 26 A ELETE ?, D 118 D AUSES AND AUSES AND See generally CCUPATIONAL , 42 L A short strike eases participation by limiting sacrifice sacrifice limiting by participation eases strike short A OT C O NLRB v. Wash. Aluminum Co., 370 U.S. 9 (1962). 9 (1962). U.S. 370 Co., Aluminum Wash. v. NLRB N Uber’s Stock Disappoints, Capping a Rocky Path to Its I.P.O. Its to Path a Rocky Capping Disappoints, Stock Uber’s 123 O , Robert D. Benford & David A. Snow, Snow, A. David & Benford D. Robert , II. ULTURES OF , 1 J. Tufekci, T Tufekci, 3(D ,C See, e.g. EYNEP The Biographical Consequencesof Activism SWALT V 212 (2017). (2017). 212 ANTASIA strikes, see James Gray Pope et al., et al., Pope Gray James see strikes, strikes of the sort described here contribute to or detract from that that from or detract to contribute here described sort of the strikes 2020] 2020] 4O The IPO, for its part, dropped at the bell and never recovered. It was, was, It recovered. never and bell the at dropped part, its for IPO, The . . See generally See . . Eight years after Walmart and McDonald’s workers made headlines made headlines workers and McDonald’s Walmart after Eight years Less covered is why, after so many years of decline, this particular particular this decline, of years so many after is why, Less covered F 119 ICK ROTEST and perpetuating the process of personal change that initial forays into activism have set into motion”). certain self-perpetuating quality to individual activism . . . deepening . . . commitment to activist values values to activist . commitment . . . deepening . . activism to individual quality self-perpetuating certain build solidarity. build both—get activists a short window to “frame” the issues. the window to “frame” a short activists both—get R literature. science social of reviews in and ethnographically 123. suggested been has This . McAdam, McAdam, Movement From Chicago From Movement likes to cover conflict and disruption, and conflict to cover likes 10, 2019), https://www.nytimes.com/2019/05/10/technology/uber-stock-price-ipo.html https://www.nytimes.com/2019/05/10/technology/uber-stock-price-ipo.html 2019), 10, according to business reports, a “highly unusual” result. unusual” “highly a reports, business to according 120. . NLRB v. Mackay Radio & Telegraph, Co., 304 U.S. 333, 345-46 (1938). studied been has 122. development movement on “frames” extensively. action collective and issue of role The . An Overview and Assessment An Overview P [https://perma.cc/3LXR-ZCVM]. [https://perma.cc/3LXR-ZCVM]. version has metastasized so quickly. Some answers are easy. For starters, starters, For easy. are answers Some quickly. so metastasized has version condi- working protest and premises the exit to work law. Stopping labor legal. is blackletter tions by walking out of work, the short strike has seemingly become a stable— become seemingly has strike short the work, out of by walking for $15, funds Fight that union labor the major SEIU, and flexible—tactic. mostly connected workers of but ad hoc groups to it, committed remains Most up the baton. picked also groups have shoestring and apps through whether but strikes, require will revival movement’s labor the that agree short space of time, permanently alter the beliefs, assumptions and values of those involved.”); Doug Doug involved.”); those of values and assumptions beliefs, the alter permanently time, of space Revive the Labor Movement many responses. In 2017, the Labor Studies Journaldevoted a “Special Section”tothe questionone- of specifically. strikes, day while still strengthening internal ties going forward. forward. going ties internal strengthening still while [https://perma.cc/3UC2-VAPH]. [https://perma.cc/3UC2-VAPH]. illegal being replaced in the interim. replaced being 121. .Z 121. 117. . Mike Isaac, Isaac, Mike . 117. chology of Strikes project is contested. is project any—of role—if the especially near-consensus, this to 118. nuances some of overview an For . 42394-ckt_95-1 Sheet No. 45 Side A 06/12/2020 13:18:38 A 06/12/2020 45 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 45 Side B 06/12/2020 13:18:38 . 126 AB L TS . 50,52 ’ EV EP D .D OL , U.S. .P M . A TUD , 33 S , 33 [Vol 95:1 [Vol Fact Finding Report Finding Fact Since the protest implicated a a implicated the protest Since conception of work has led to a conception 124 The Supreme Court’s empathetic empathetic Court’s The Supreme 125 ’s story of seven machinists who walked out of of out who walked machinists seven of ’s story CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM On theWaterfront Over the years scholars had, at best, considered the the considered best, at had, scholars years the Over From Labor Law to Employment Law Employment to Law Labor From ELETE A. Employment Law and its Discontents Discontents its and Law A. Employment 127 D OT N O 3(D Comm’n on the Future of Worker-Mgmt. Rel., Rel., Worker-Mgmt. of Future the on Comm’n at 12-15. 12-15. at at 14. 14. at at 12-13. That is, the action was “concerted” and “for the purpose of . . . mutual aid and and aid mutual . . . of purpose the “for and “concerted” was action the is, That 12-13. at Id. Id. Id. SWALT V See also See . (1994) (“[E]mploymentlaw[] has come toplay a much more prominent role both onthejob Washington Aluminum Washington 82 82 4O Yet, the same factors existed thirty years ago. There must be more to to more be must There ago. years thirty existed factors same the Yet, It is a surprise because, between the two, labor law has been seen as as been seen has law labor two, the between because, is a surprise It Every labor law casebook has a strike chapter, and it usually starts starts it usually and chapter, has a strike casebook law labor Every OM 127. Daniel J. Galvin, . 126. . 126. group and was aimed at bettering working conditions, labor law’s founda- law’s labor conditions, working bettering at aimed and was group it. covered 7, Section provision, tional protection.” protection.” (2019). the story. Three new chapters are sketched out below. The first shifts the the shifts The first below. out sketched are chapters new Three the story. of regulation in the weaknesses where law, to employment labor lens from the bedrock as much as strikes short may shape rights workplace individual been always has attention public while Second, rights. group of protections economy information freewheeling frenetic, today’s to activism, critical project that in it ways and control to generate ever than it harder has made of pro- theory Tufekci’s Zeynep from Borrowing strength. and credibility have Uber workers and Google, McDonald’s, that argue I capacities, test social sophisticated against delicacies corporate by pitting code the cracked solidarity Third, support. organizational on-the-ground and shaming media &C . 124. 125. (1962). 11-12 9, U.S. 370 Co., Aluminum v. Wash. . NLRB testifies both to the principle’s breadth and that discussions about the law’s the law’s about discussions that and breadth to the principle’s both testifies labor the of giant this with end and to begin likely are strikes short in role its of basics the beyond goes function law’s labor here But law cannon. as- strikes’ short about thinking for point entry key The cloak. protective rights of law individual law, in today’s as holes employment cent is really turn. star a surprise into rights of group law yesterday’s thrust have unioniza- prolix remedies, NLRA’s weak The understudy. an of somewhat circa- and regime, tion “gradual shift from labor law to employment law as the primary guardian guardian the primary as law to employment law labor from shift “gradual rights.” of workers’ and in the courts.”). courts.”). in the and rejoinder that “[t]hey had to speak for themselves as best they could” best they as themselves for to speak had “[t]hey that rejoinder is both a cause and consequence of collective action, but the ties most rele- most ties the but action, collective of consequence and cause a is both newest the to endemic be already might strikes short of course the to vant else. everybody now outnumber workers—who of generation with a frigid factory when the furnace broke. the furnace when factory a frigid 42394-ckt_95-1 Sheet No. 45 Side B 06/12/2020 13:18:38 B 06/12/2020 45 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 46 Side A 06/12/2020 13:18:38 , . 2 . 2 .65 .65 ,28 ,28 EV ROBS L. R .P . 2685, 2689 2689 . 2685, The glare The glare EV L.J. 616, 632-33 136 ELFARE 131 . 133, 179 (1996) ONTEMP L. R .W EV ALE 128 &C OC .L.R Ben Sachs went fur- went Ben Sachs .&S , 128 Y ARDOZO HI OSHA, the OpportunismPolice , 82 L. EN C 129 .B , 29 C , 29 AR Savefor a surveillance alle- Worse Than Pirates or Prussian Chancel- or Pirates Prussian Worse Than , 63 , 63 U. 133 83 83 , 17 M Id. The worker center Sachs highlights had had highlights Sachs center The worker 135 132 SHORT STRIKES Rethinking the Tripartite Divisionof American Work Law Fissuringand the Firm Exemption ) 6/10/2020 ) 12:03 PM The Regulation of Groups Regulation The Employmentas Law Labor Law ELETE D An American Approach to Social Democracy Social to Approach American An . (2007). 211-12 169, 163, L. OT note 129, at 213-14. In an example of increased mutuality between the fields, the fields, between mutuality of increased an In example at 213-14. 129, note note 130, at 2708, 2719-20. N AB O , Sanjukta Paul, . 991 (regarding workplace safety regimes). regimes). safety workplace (regarding 991 . supra .&L supra , Eric Posner, 3(D EV MP at 2707. at 2685-748. 2685-748. at at 2719. As Sachs notes, winning reinstatement at the Board would have have would Board the at reinstatement winning notes, As Sachs J. E L. R Id. e.g. See, Id. Id. SWALT V In Sachs’ instructive vignettes, unpaid overtime rallies the collec- the rallies overtime unpaid vignettes, instructive Sachs’ In 134 See, e.g. 2020] 2020] 4O To varying degrees, both accounts are premised on labor law’s docu- law’s labor on premised are accounts both degrees, To varying While the labor law criticism persists, recently the spotlight has ex- has spotlight the recently persists, criticism law labor the While Recent commentary is more nuanced. Last decade, Richard Michael Michael Richard decade, Last nuanced. more is commentary Recent 130 ERKELEY 135. . 135. 136. . 136. probably taken about two years. about taken probably (2008). . 131. 134. . 134. mented deficiencies. “[W]idely publicized” employment law charges in in law charges employment publicized” “[W]idely deficiencies. mented NLRB’s the skirt union the help to tailored were study case central Fischl’s altogether. machinery election (2019) (regarding employees andantitrust); Michael C. Duff, lors: A State’s Authorityto Opt-Outof the Quid Pro Quo Sachs, I. 130. Benjamin . panded to other workplace and workplace-adjacent doctrines. and workplace-adjacent workplace other panded to 128. . Kate Andrias, Andrias, Kate . 128. categories in tension; at worst, employment law’s smorgasbord of state and and of state smorgasbord law’s at employment worst, in tension; categories law’s labor corrode actively to were thought standards minimum national group. as a more for negotiate to right federally-entrenched (“[E]mployment laws reduce the cooperation-defection differential and, as a consequence, union soli- union a consequence, as and, differential cooperation-defection the reduce laws (“[E]mployment Fischl identified an “accelerating integration” of regimes, like the “strategic “strategic the like regimes, of integration” an “accelerating identified Fischl to claims discrimination and safety, wage, individualized of deployment” campaigns. union during resolve weaken employer (2019). has not been good to employment law. Eulogistic language, so common in in common so language, Eulogistic law. employment to good been has not (2016) (regarding workers’ compensation benefit systems); Jason Bent, Bent, Jason systems); benefit compensation workers’ (regarding (2016) 2017 BYU already “abandoned the NLRA,” and before the EEOC settlement workers workers EEOC settlement the and before the NLRA,” “abandoned already a chance. NLRB charges given had actually gation—which resulted in a notice posting—the agency rejected every every rejected agency posting—the a notice in resulted gation—which claim. 132. . Fischl, Fischl, . 132. Sachs, Fischlnotes thattheunion also filed labor law charges. . 133. ther, showing how employment litigation was functioning not merely as as merely not functioning was litigation employment how showing ther, law” labor of form “substitute as a full-fledged but “leverage,” organizing jus- for workplace fighting groups insulate and galvanize can both that tice. B darity.”). Fischl, Michael Richard 129. . tive, the EEOC investigates, sues, and wins $750,000 from a racist racist a from $750,000 wins and sues, EEOC investigates, the tive, 9 days. in firing a retaliatory DOL remedies the and employer, 42394-ckt_95-1 Sheet No. 46 Side A 06/12/2020 13:18:38 A 06/12/2020 46 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 46 Side B 06/12/2020 13:18:38 . EV 141 , 62 ALE ALE .L.R Workplace Workplace , 128 Y ASH . 697, 681-82 681-82 . 697, EV .W (Feb. 28,2019), EO Wrongful Discharge . 93, 103-05, 111-12 L. R OX EV R ,V , 87 G Y ’ OL ,96N.C. That includes the har- the includes That No plaintiffs fare worse, worse, fare plaintiffs No . (2018). 57 53, L. [Vol 95:1 [Vol 139 138 AB L. & P It’s because of how they are are they how of because It’s ALE .&L . 581,589-94 (2018). 146 MP EV A Seed Germinates: Unjust Dismissal Reform Seed UnjustA Germinates: Reform Dismissal . 155, 156-57 (2019). (2019). 156-57 . 155, , 37 Y . L. 569, 570-71 (2007) (“Various commentators commentators . (“Various (2007) 570-71 569, L. J. E and in many industries wage theft, wage theft, industries and in many EV .L.R AB 142 D . 1655, 1657 (1995). (1995). 1657 1655, . .&L EV . 56, 57-58 (1988); Cynthia Estlund, 145 ERKELEY , 77 M , 77 MP Sexual Harassment and Solidarity and Harassment Sexual EV 22, 23, 27 (2015);Maryam Jameel& Joe Yerardi, .L.R J. E , 39 , 39 B EX .L.R . C.R.-C.L. L. R And, of course, today all employment claims, claims, employment And, today all of course, Let’s Pretend that Federal Courts Aren’t Hostile to Discrimination CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT EB ) 6/10/2020 ) 12:03 PM 143 ARV IndividualProtection Against Unjust Dismissal:for TimeStatute a Equal Work , 74 T Decline and Disenchantment: Reflections on the Agingthe ofNational has migrated to Title VII. Mandatory Arbitration Stymies Progress Towards Justice in Employment Employment in Justice Towards Progress Stymies Arbitration Mandatory ERKELEY ERKELEY Was Sexual Harassment Law a Mistake? The Stories We Tell We Stories The a Mistake? Law Harassment Sexual Was ELETE The Black Hole of Mandatory Arbitration Mandatory of Hole Black The , 67 , 67 N D URTHERMORE 137 The Problem ofWage Theft ,54 H ,54 OT , 28 B N O .L.J.F https://perma.cc/J5TG-CC8D]. https://perma.cc/J5TG-CC8D]. some wonder if the law has done more harm than good. than harm more done law has the if wonder some T Message ina Bottle [ S 3(D 140 Clyde Summers, HIO . 481, 484 (1976); Theodore St. Antoine, Antoine, St. Theodore (1976); 484 481, . 152, 152 (2018). (2018). 152 152, See See SWALT V EV —if they even get that far. that get even they —if , 76 O 84 84 4O But if the recent laments signal a new era in relations between em- between relations in era new a signal laments recent the if But ORUM 144 .L.R A and dreams . . . that I believed as an earnest twenty-four-year-old it would come to represent.” Linda Linda represent.” to come it would twenty-four-year-old earnest an as believed I that . . . dreams and Hamilton Krieger, find will a someone in right, is it time put the when message, day, one this that hope write the “I in sea to 138. out bottle representative: the is throw and reflection bottle, recent Krieger’s Hamilton Linda . hopes the it with and law, good this VII, Title reviv[e] . . . and the message, read and out take bottle, the V and backlash for complaining about it, is part of the business plan, the the plan, business the of is part it, about complaining for and backlash FLSA notwithstanding. under all laws, risk banishment to the shadow world of forced arbitra- forced of world the shadow to banishment risk laws, under all tion the EEOC’s budget was larger thirty years ago, and a mix of judicial hostil- of judicial and a mix years ago, thirty the EEOC’s budget was larger wholesale “a signal increasingly pressures management and case ities project.” antidiscrimination the of abandonment ployment and labor law, it is not because the double-edged sword has final- has sword double-edged the because not is it law, labor and ployment been have injustices employment’s at-will all, (after sides both on ly dulled years). fifty nearly for interest of academic 142. . Stephanie Bornstein, https://www.vox.com/policy-and-politics/2019/2/28/18241973/workplace-discrimination-cpi- 141. . Tristin K. Green, K. Tristin 75 (2019). 56, . 141. 139. . Marcia L. McCormick, L. Marcia . 139. Claims 144. . Jean R. Sternlight, Sternlight, R. Jean (2019). . 144. Law:Where To, #MeToo? (2018). . 146. investigation-eeoc investigation-eeoc 140. Matheny, Ken & Crain Marion . L.J. F 137. . Wilma B. Liebman, Liebman, B. Wilma . 137. Board Relations Labor NLRA scholarship, NLRA too, is endemic, Pay discrimination, Protections in an At-Will World At-Will an in Protections 145. . Cynthia Estlund, Cynthia . 145. suddenly interacting. In a reversal of Fischl’s and Sach’s early 2000s find- 2000s early Sach’s and of Fischl’s reversal a In interacting. suddenly activ- law rules employment for now be found filling-in law can labor ings, strikes, short through framing, Sachs’ Borrowing inadequate. deem ists of protection substantive its for simply not law labor on relying are workers assment sub-category, where, despite #MeToo, misconduct remains “so “so remains misconduct #MeToo, despite where, sub-category, assment ubiquitous” discrimination is illegal. But our data shows it’s still a huge problem huge a still it’s shows data our But illegal. is discrimination Heads Toward Full Flower describe the [NLRA] . . . as dead, dying, or at least ‘largely irrelevant . . . .’”). . . . .’”). irrelevant ‘largely or at least dying, . . dead, as . the [NLRA] describe 143. . Nicole Hallett, Nicole . 143. 42394-ckt_95-1 Sheet No. 46 Side B 06/12/2020 13:18:38 B 06/12/2020 46 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 47 Side A 06/12/2020 13:18:38 mis- , N.Y. Towards a Google Google 151 successful Uber drivers Protecting Platform Platform Protecting 148 85 85 . 739, 747-48 (2017). Martin Malin has stressed has stressed Malin Martin (2017). 747-48 739, . EV .L.R IS . 377, 386 (2018). (2018). 386 377, . So drivers struck for higher pay instead. instead. pay higher for struck So drivers EV SHORT STRIKES 150 .L.R , 2017 W , 2017 . 605, 648 (2017). 648 (2017). . 605, ) 6/10/2020 ) 12:03 PM ND EV Here, “employment law as labor law” has become become has law” labor as law “employment Here, 1. Labor Law as Employment Law Law as Employment 1. Labor note 66. 66. note 147 ELETE , 51 I Is Gig Work a Job? Uber and Others Are Maneuvering to Shape the An- the Shape to Maneuvering Are Others and Uber a Job? Work Gig Is D .L.R note 96. As Veena B. Dubal has meticulously shown, even even shown, meticulously has B. Dubal Veena As 96. note In a Test of Their Power,#MeToo’s Legal Forces Take on McDonald’s OT supra LA note 130, at 2687. Naomi Schoenbaum has touched on this idea in stressing the N O supra (Mar. 26,2019), https://www.nytimes.com/2019/03/26/business/economy/gig- , 68 , 68 A and Uber soon persuaded a number of states to amend stat- amend to states of number a persuaded soon Uber and supra 3(D IMES 149 T SWALT V 2020] 2020] 4O When the results were in, McDonald’s and Google workers had won won had workers and Google McDonald’s in, were results When the Unlike the earliest actions at McDonald’s and Walmart, which which Walmart, and at McDonald’s actions the earliest Unlike (May 21, 2019), https://www.nytimes.com/2019/05/21/business/mcdonalds-female-employees- 2019), 21, (May ,N.Y. IMES Law of of Coworkers Law classification challenges in the gig economy can lead to legal and practical frustrations. V.B. Dubal, Dubal, V.B. frustrations. practical and legal to lead can economy gig the in challenges classification War the Losing Battle, the Winning 149. . Bhuiyan, . 149. had high hopes that litigation would make them legal employees entitled to to entitled employees legal them would make litigation that had high hopes had proved efforts the But and unemployment. overtime, wages, minimum “fruitless,” Workers in the Gig Economy Gig the in Workers centrality of “coworker solidarity” in strengthening employment law. Naomi Schoenbaum, Schoenbaum, Naomi law. employment strengthening in solidarity” “coworker of centrality announced its own “overhaul” of the company’s complaint, reporting, and and reporting, complaint, the company’s of own “overhaul” its announced sexual-harassment.html [https://perma.cc/H7VJ-MMNV]. [https://perma.cc/H7VJ-MMNV]. sexual-harassment.html 148. . Conger et al., al., et Conger . 148. things right at home in a Title VII settlement. McDonald’s set up a “third- up set McDonald’s settlement. VII a Title in home at right things employees,” “front-line train to agreed hotline,” anonymous party-managed mail. in the were posters and breakroom supervisors, not just 147. . Sachs, Sachs, . 147. group protest, “but also as the legal architecture that facilitates” the aims of of aims the facilitates” that architecture legal as the “but also protest, group statutes. employment “the long-run futility of the battle over employment status.” Martin H. Malin, Malin, H. Martin status.” employment over battle the of futility long-run “the T utes in the opposite direction. utes in the opposite economy-lobbying.html [https://perma.cc/29N2-6L29]. [https://perma.cc/29N2-6L29]. economy-lobbying.html 151. Ryzik, . Melena emerged as seemingly exceptional—even, at the time, sui generis— sui time, the at exceptional—even, seemingly as emerged pay and disrespect, low like bad jobs of realities universal to the responses law employment particularized had pedigrees: 2018 of strikes the short charges 15 EEOC filed already had $15 for Fight McDonald’s, At failures. corpo- at every active policy” tolerance “zero The states. different in eight policy.” “zero as in practice, revealed, been had store franchised and rate agree- arbitration to sign required had been victims At Google, harassment ments silencing the facts, their voices, and assorted multi-million dollar 150. . Noam Scheiber, Scheiber, Noam . 150. swer labor law as employment law. The shift accounts, in part, for short strikes’ strikes’ short for part, in accounts, shift The law. employment law as labor rise. payouts to abusers until leaks lifted the veil. In a strange attempt at assur- at attempt a strange In veil. the lifted leaks until abusers to payouts been had also others forty-eight that then announced company ance, the money. for less months—but fired in the last twenty-four 42394-ckt_95-1 Sheet No. 47 Side A 06/12/2020 13:18:38 A 06/12/2020 47 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 47 Side B 06/12/2020 13:18:38 156 .L. S.F. , ICH On Law, NDERMINE U , 11 M (Nov. 29, 2017), 2017), 29, (Nov. OURTS C IMES S T ’ Part III.B. Part socio-legal As ,N.Y. MERICA see infra A [Vol 95:1 [Vol 155 OW at 891; at :H (Nov. 8, 2019), 2019), 8, (Nov. . 653, 664 (2010). Id. CI IMES .S T NEQUAL OC Google, After Employee Walkout, Overhauls Sexual Sexual Overhauls Walkout, Employee After Google, ,U .L.&S The law lags #MeToo and, as others have have as others and, The law lags #MeToo EV HOMAS 158 T .R Open Forum: Uber, Lyft ready to doour part fordrivers but it also seemed tailored to head off moves by by moves head off to tailored seemed it also but NN UJA CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ConstitutionalChange, Courts, andSocial Movements ) 6/10/2020 ) 12:03 PM 154 , 6 A &S ELETE Treat workers as employees? Uber, Lyft and others are scrambling for a a for scrambling are others and Lyft Uber, employees? as workers Treat , N.Y. D Both stopped arbitrating harassment and discrimination discrimination and harassment arbitrating stopped Both (June 23, 2019), https://www.latimes.com/business/technology/la-fi-tn- 2019), 23, (June OT 152 N 34-37 (2017). PERINO O IMES S AW L 3(D Douglas NeJaime, ; Press Release, Clean Yield Asset Mgmt, McDonald’s Raises the Level of Transparency Transparency of Level the Raises McDonald’s Mgmt, Asset Yield Clean Release, ; Press Gains at Uber were less concrete. The company’s new public public new company’s The concrete. less were at Uber Gains , L.A.T ANDRA A “severe or pervasive” requirement renders most touchings, touchings, most renders requirement pervasive” or “severe A See Id. SWALT V 153 Boss Grab Your Breasts? That’sBoss Grab Breasts? Your Not (Legally) Harassment 157 . (June 12, 2019), https://www.sfchronicle.com/opinion/openforum/article/Open-Forum-Uber- 2019), 12, . (June 86 86 4O Yet, short strikes are likely to persist less because of short-term “re- short-term of because less to persist likely are strikes short Yet, . 877,. 878-79 (2013) (providing an overviewand suggesting a social movement theory-specific ISCRIMINATION HRON EV the California legislature to mandate much more. much mandate to legislature the California https://www.nytimes.com/2018/11/08/technology/google-arbitration-sexual-harassment.html Op-Ed. 157. Times N.Y. a cutting in Opinion, point this made memorably Thomas Suja and Sperino . Sandra https://www.nytimes.com/2017/11/29/opinion/harassment-employees-laws-.html S [https://perma.cc/3TPZ-NG6N]. . 158. C D The reality of Title VII’s judicial gloss, for example, is that acts most peo- most acts is that example, for gloss, judicial VII’s of Title The reality sex harass- constitute legally, not, do sex harassment constitute think ple ment. 152. Wakabayashi, Daisuke & Misconduct Conger Kate Policy . training systems. training judicial evolve eventually may it profound so is mismatch the suggested, R openness to paid time off, retirement security, and “earnings transparency” transparency” “earnings and security, retirement off, time paid to openness something, perhaps was claims. approach). Here, the advocacy of legal meaning is similarly social and “bottom-up,” but the target is is target the but “bottom-up,” and social similarly is meaning legal of advocacy the Here, approach). reputation- with courts of substitution the that suggest I courts. not corporations, profit-maximizing targets. soft particularly for make can companies sensitive scholars have emphasized, because “rights-talk,” like freedom from harassment or poverty-level wages, wages, poverty-level or harassment from freedom like “rights-talk,” because emphasized, have scholars social negotiate to [it] use often clout political and social lack who those legitimacy, “enormous carries al., et Edelman Lauren court.” in meaningless largely be would claims their if benefits—even Lyft-ready-to-do-our-part-for-13969843.php [https://perma.cc/M6F7-9U6L]. dynamex-contractors-ab5-20190623-story.html [https://perma.cc/JB78-DBFP]. [https://perma.cc/JB78-DBFP]. dynamex-contractors-ab5-20190623-story.html sults” and more because of how they facilitate employment law power in in power law employment facilitate they how of because more and sults” is that reason primary A not. does infrastructure statutory ways the standard developed otherwise doctrine into meanings public import can strikes short terrains. conceptual forgiving less onto employers pressing by courts, jokes, leers, and comments nonactionable and offers management attorneys attorneys management offers and nonactionable comments and leers, jokes, comparators. helpful copious [https://perma.cc/4VKL-JH9U]. [https://perma.cc/4VKL-JH9U]. Organizations, and Movements and Organizations, 156. Scholarshiphas explored activists’roles . inmeanings. shaping judicialperceptions of constitutional 153. . 153. CSRwire), with file (on 2019) 16, (Apr. Companies All for Policies Arbitration Forced on https://www.csrwire.com/press_releases/41884-McDonald-s-Raises-the-Level-of-Transparency-on- 155. . Johana Bhuiyan, Bhuiyan, Johana . 155. compromise Forced-Arbitration-Policies-for-All-Companies [https://perma.cc/RZ9K-C3JP]. 154. al., et Khosrowshahi Dara . 42394-ckt_95-1 Sheet No. 47 Side B 06/12/2020 13:18:38 B 06/12/2020 47 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 48 Side A 06/12/2020 13:18:38 . 229, . 229, (Oct. 6, EV LOOMBERG OST P .L.R ,B UFF INN ,H , 103 M , 103 FranchiseRegulation for the While lawyers tidied briefs, briefs, tidied lawyers While 160 87 87 Post-strike, the company rolled out out rolled the company Post-strike, 165 163 Whatever corporate’s legal position on on position legal corporate’s Whatever McDonald’s Its Policy Revamps Harassment . 907 (2018). SHORT STRIKES 166 EV note 156 (“[Activists] extend general and accepted legal frames frames legal accepted and general extend (“[Activists] 156 note note 162. .L.R ) 6/10/2020 ) 12:03 PM supra At Google, it precipitated one of more unexpected unexpected more of one precipitated it At Google, ASH note 66. 66. note supra The Legal Implications of the MeToo Movement MeToo the of Implications Legal The ELETE 162 .W 167 D note 51. EO OT supra McDonald’s Workers DetailMcDonald’s Workers HorrifyingSexual Harassment But when it came to strikes, the giant franchisor seeming- franchisor giant the strikes, to came it But when N note 47. 47. note O 164 But short strikes force a reckoning right now. Precedents now. Precedents right a reckoning force strikes short But supra , Edelman, ,86 G ,86 3(D 159 supra 29 C.F.R. § 1604.11(a)(3) (2019) (describing the legal inquiry as whether conduct “un- conduct whether as inquiry legal the (describing (2019) § 1604.11(a)(3) 29 C.F.R. At McDonald’s that forced a quick concession. “[W]e’re chang- “[W]e’re a quick concession. forced that At McDonald’s Cf. See, e.g. See, SWALT V 161 2020] 2020] 4O Likewise, most would probably be surprised to learn that 90% of those of those 90% that learn to surprised be would probably most Likewise, ing,” said the CEO. the said ing,” 167. . Abrams, Abrams, . 166. 167. Eidelson, & . Patton (May 21, 2019), https://www.bloomberg.com/news/articles/2019-05-20/mcdonald-s-revamps-its- 2019), 21, (May 159. . Elizabeth Tippett, Tippett, Elizabeth . 159. perceptions. 2016), https://www.huffpost.com/entry/mcdonalds-harassment- complaint_n_57f5385ae4b0b7aafe0b4584 [https://perma.cc/CX4S-D53F]. For anoverview of“joint Elmore, Andrew see workplace, franchised the in law employment” Economy Fissured can’t be parsed in the streets. New York Times exposés will be held to the to the be held will exposés Times York New the streets. in parsed be can’t tolerable. is not, is, or what bar for public’s sporting the Golden Arches do not, from McDonald’s perspective, work for for work perspective, McDonald’s from do not, Arches Golden the sporting con- no has Inc. McDonald’s that position non-obvious The McDonald’s. a across strategy litigation to its is core workforce franchised its over trol to the public argument company’s and it was the laws, of workplace variety franchised against charges EEOC of round first its filed $15 for when Fight in stores 2016. turns in modern U.S. labor relations: Sudar Pichai expressed formal “sup- formal expressed Pichai Sudar relations: U.S. labor modern in turns walkout. own workers’ his for port” 241–43 (2019). . 160. 165. . A.P., A.P., . 165. reasonably interfer[es] with an individual’s work performance” or creates “an intimidating, hostile, or or hostile, “an intimidating, creates or performance” work an individual’s with interfer[es] reasonably 162. Eidelson, Josh & Patton Leslie . ly lost its nerve. Pre-strike, the company offered self-praise and an arms- self-praise offered the company Pre-strike, nerve. its ly lost implicit bias and harassmenttrainings forfranchise owners, managers, and communities and the workforce our of needs the “meet to “crew” front-line and operate.” live we where joint-employer doctrine, Fight for $15’s take that “anything [McDonald’s] [McDonald’s] “anything that take $15’s for Fight doctrine, joint-employer 7— Section dose of a had—after be” can it on, effective to be wants out. won apparently striking took that extant, even intuitive, frame and shoved it in executives’ executives’ in it shoved and frame intuitive, even extant, that took striking faces. offensive working environment”). environment”). working offensive . 161. (e.g., the law prohibits gender discrimination in employment) to other aspects of everyday life (e.g., the the (e.g., life everyday of aspects other to employment) in discrimination gender prohibits law the (e.g., law prohibits sexual harassment) to call into question previously acceptable social behavior.”). harassment-policy-as-criticism-mounts [https://perma.cc/DT7K-HCZB]. [https://perma.cc/DT7K-HCZB]. harassment-policy-as-criticism-mounts length confidence in its liberated namesakes: “[W]e firmly believe that our our that believe firmly “[W]e namesakes: liberated in its confidence length commitment.” this share franchisees 164. . Emily Peck, Peck, Emily . 164. 163. . Conger et al., al., et Conger . 163. 42394-ckt_95-1 Sheet No. 48 Side A 06/12/2020 13:18:38 A 06/12/2020 48 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 48 Side B 06/12/2020 13:18:38 , - O 172 175 C , 104 (May . 457, 531 ERGE required required EV ,V 168 , (Sep. 25, 2018), (May 22, 2019), 2019), 22, (May .L.R EGULATION TO A P -R EUTERS ELF (Jan. 8,2019), S , R LOOMBERG , 141 U. , B IMES ROM T and gig workers are, as as are, workers and gig [Vol 95:1 [Vol :F Accessing any part of the of the part any Accessing 173 But if any group—of any any group—of any if But 176 AY 169 B ORKPLACE Epic Systems v. Lewis Systems Epic W The FLSA at 80: Everything Old is New Again New is Old Everything 80: at FLSA The AMPA , T Representation could help, but obtaining it is is it but obtaining help, could Representation 177 . 351, 397 (2002). (2002). 397 351, . CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT EGOVERNING THE ) 6/10/2020 ) 12:03 PM EV ,R , Kati L. Griffith, NoClass Actionfor Unhappy Uber Drivers Labor and Employment Law at the Millennium: A Historical Review and L. R ELETE Effective Remedies for Employment Rights Employment for Remedies Effective D In aftermath of viral McDonald’s fight, workers plan strike to demand train- demand to strike plan workers fight, McDonald’s viral of aftermath In Google Employees Protest Retaliation with International Sit-In International with Retaliation Protest Employees Google OT N That helps make the tactic a fundamentally free agent, agent, free a fundamentally tactic the make That helps STLUND See, e.g. See, O E 171 , 43 , 43 B.C. (May2018), https://rocunited.org/wp- 3(D . 557, 564-69 (2019). (2019). 564-69 . 557, EV NLRB v. Wash. Aluminum Co., 370 U.S. 9, 14 (1962) (“The language of §7 is broad broad is §7 of language (“The (1962) 14 9, U.S. 370 Co., Aluminum v. Wash. NLRB ORG Take Us Offthe Menu: The Impact of Sexual Harassmentin the Restaurant Industry 75 (2010). 75 (2010). . YNTHIA of regulation governs “a maze of potential claims and forums” claims of potential “a maze governs of regulation See L. R SWALT V 174 NITED 88 88 4O Very little about employment law is simple. A “vast, hydra-headed hydra-headed “vast, A simple. law is employment about Very little In other situations, workers are just freer to assert rights under labor labor under rights to assert freer just are workers situations, other In Procedurally, short strikes draw a beautiful contrast. The prerequisites The prerequisites contrast. beautiful a draw strikes short Procedurally, 170 EGULATION ORNELL system requires a sense of where to start, a baseline many, particularly low- particularly many, baseline a start, to where of sense a requires system have. do not wage, workers 172. . Sara DiNatale, DiNatale, Sara . 172. ing, protection from violence noted, confirmed serial strikers. strikers. serial noted, confirmed equipped to switch on and off and from topic to topic with fluidity. fluidity. with topic to topic from off and on and switch to equipped violence, workplace over walked-out since have workers McDonald’s https://www.reuters.com/article/us-uber-lawsuits/no-class-action-for-unhappy-uber-drivers-u-s-appeals- 175. Assessment Critical Befort, F. Stephen . https://www.tampabay.com/business/in-aftermath-of-viral-mcdonalds-fight-workers-plan-strike-to- https://www.bloomberg.com/news/articles/2019-05-22/mcdonald-s-workers-want-osha-to-investigate- (1992). Opportunities Restaurant victims. by ignored subsequently and normalized become 177. illegal- work other and service in harassment ities pervasive how studied has Center Opportunities Restaurant . The United, Ctr. ROCU law than employment law. Thanks to law. employment than law Googlers over retaliation from the first strike, first the from retaliation over Googlers and remedies.” procedures of and a “jumble Stempel, Jonathan . 168. 169. (2018). 1632 1612, Ct. 138 S. v. Lewis, Corp. . Epic Sys. R amount to get-up-and-go, no lawyer, negotiation, or even articulated de- even articulated or negotiation, no lawyer, to get-up-and-go, amount mand needed. 171. . 171. a such time same the at or after, before, place take they whether activities concerted protect to enough demandis made.. . .”) arbitration contracts mean Uber drivers cannot use courts or arbitration to to arbitration or courts use cannot Uber drivers mean contracts arbitration group. a as rights law employment claim 1, 2019),https://www.theverge.com/2019/5/1/18525473/google-employee-sit-in-retaliation-protest 176. . Clyde Summers, Summers, Clyde . 176. size—asserts the identical employment law claim in a strike, it’s in a it’s protect- strike, law claim employment the identical size—asserts ed. body” [https://perma.cc/HB44-9W9S]. C [https://perma.cc/HB44-9W9S]. . 174. demand-training-protection-from-violence-20190107/ [https://perma.cc/EV32-RXY5]; Josh Eidelson, pattern-of-violence [https://perma.cc/6G3T-3DD5]. [https://perma.cc/6G3T-3DD5]. pattern-of-violence 173. . Colin Lecher, Lecher, Colin . 173. court-idUSKCN1M526F [https://perma.cc/2HJ6-8B4M]. McDonald’s WorkersWant to OSHA investigate Patternof Violence 170. inde- not are “employees,” contractors. drivers pendent that Uber do, scholars many as assumes, of course, This, . C 42394-ckt_95-1 Sheet No. 48 Side B 06/12/2020 13:18:38 B 06/12/2020 48 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 49 Side A 06/12/2020 13:18:38 , 181 179 185 but at but at Because Because 180 186 note 38 (quoting a Fight Fight a 38 (quoting note Marcus, an Uber Uber an Marcus, . L. 55, 64-77 (2004). 183 A Google striker took took A Google striker supra MP Public Interest Lawyers and Re- and Lawyers Interest Public 184 .&E AB (Sept. 18, 2019, 9:06 AM), Accounts of short strikes, in in strikes, of short Accounts Lennard, ; 89 89 182 .J.L A P NTERCEPT . 105,. 133-46 (1997). note 41 I EV , 7 U. HE supra supra L. R SHORT STRIKES , T . 1879,1904-07 (2007). ORNELL EV ) 6/10/2020 ) 12:03 PM , 83 C .L.R Finding Lawyers for Employees in Discrimination Disputes as a Critical a Critical as Disputes Discrimination in Employees for Lawyers Finding McDonald’s Workers Are Striking Against Sexual Harassment — Tying Tying — Harassment Sexual Against Striking Are Workers McDonald’s Google walkouts showed what the new tech resistance looks like ELETE note 32; Covert, D ALIF but a class issue, where only good salaries provide the the provide salaries good only where issue, class a but note 96. note 51. On workers lacking basic knowledge of workplace regulation, see OT note 116. note 175,at 401-03. note 175, at 402. at 402. 175, note N supra 178 O supra ,95 C ,95 supra supra Bargaining with Imperfect Information: A Study of Worker Perceptions of Legal of Legal Perceptions of Worker A Study Information: Imperfect with Bargaining supra supra 3(D (Nov. 3, 2018), https://www.cnbc.com/2018/11/03/google-employee-protests-as-part-of- SWALT V COM 2020] 2020] 4O The question, of course, is whether the energy can endure. A clue is is A clue endure. can the energy whether is of course, The question, Then there are the less definable dignitary benefits. A vast literature literature vast A benefits. dignitary definable less the are Then there McDonald’s, Google, and Uber, the regular levers of employment litigation litigation employment of levers regular the Uber, and Google, McDonald’s, regional at filed workers food Fast demoralization. to mostly led had followed. “frustration” and happened Nothing person. in EEOCs proudly Ashar, Sameer see 180. literature, this of summary deft a For . sistance Movements sistance https://theintercept.com/2018/09/18/mcdonalds-strike-sexual-harassment-me-too/ perhaps revealed in Stephen Befort’s depiction of the many tickets and few and few tickets many of the depiction Befort’s in Stephen revealed perhaps law lottery.” employment American winners in the “uniquely to a makeshift stage and called for more advocacy, more allyship, and more more and allyship, more advocacy, more for called and stage makeshift to a crowd erupted. The she wondered. sacrifice?” you will “What protest. Justice 178. Racial Embrace to Unions for Prescription Z. Green, Michael . interrogates the impact of courts and lawyers on activism, on lawyers and courts of impact the interrogates driver, had similar feelings: “We have to do this.” to do “We have feelings: similar had driver, requisite power to pay or, in the contingency context, damages to damages collect. context, power to or, in pay the contingency requisite content/uploads/2018/05/TakeUsOffTheMenu_Report_2.pdf [https://perma.cc/HDS7-VWZ7]. At not just not just difficult left Lawsuits years. for arbitration in hermetic mired was Google pushback peo- “[l]et to struggle,” our “humanize to a way for searching Uber drivers contrast, read like primal screams. “We’re fearless,” said McDonald’s McDonald’s said fearless,” “We’re screams. primal like read contrast, $9 who makes Lawson, worker Kimberly an hour. Protections in an At-Will World At-Will an in Protections 183. . Natasha Lennard, Lennard, Natasha . 183. 181. . Thomhave, Thomhave, . 181. 179. . Befort, Befort, . 179. [https://perma.cc/UT73-SFP4]. the drawings and disappointments will surely continue and, in the mean- the and, in continue surely will and disappointments the drawings can try a strike. everybody short time, McDonald’s, workers “didn’t even know that the conduct they were tolerating was unlawful, and they they and unlawful, was tolerating were they conduct the that know even “didn’t workers McDonald’s, do could they anything was there that managers, approached unsuccessfully had they after idea, no had Abrams, it.” about PaulineKim, T. for $15 attorney describing the impact of the EEOC as “an exercise in frustration”). frustration”). in exercise “an as EEOC the of impact the Bhuiyan, describing attorney $15 for . 182. #MeToo to Their Labor Struggle Labor Their to #MeToo CNBC. 184. . Glaser, Glaser, D’Onfro, . Jillian 184. . 185. ple know what’s really going on with us.” on going really ple know what’s new-tech-resistance.html [https://perma.cc/A5T2-BYTR]. Befort, [https://perma.cc/A5T2-BYTR]. new-tech-resistance.html . 186. 42394-ckt_95-1 Sheet No. 49 Side A 06/12/2020 13:18:38 A 06/12/2020 49 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 49 Side B 06/12/2020 13:18:38 EW EW 190 193 N , 528 , 528 But to- But ETWORKED ETWORKED OWER AND P N 192 OWER IN THE grounds. No grounds. EGAIN EGAIN P R 189 And social media media And social AN RAGILITY OF RAGILITY C F 195 EOPLE [Vol 95:1 [Vol P RGANIZING FOR O OWER AND P HE HE ORKING ORKING and institutional and ASE FOR W :T 848, 859 (2013). (2013). 859 848, C 188 AS OW G HE Movements and Media as Interacting Systems as Interacting Media and Movements Framing Processesand Social Movements: An Over- How those ends are shaped by mass mass by shaped are ends those How :T :H EAR 191 CIENTIST B. “Attention” B. “Attention” T .S After fourteen days, most big papers had papers big most days, fourteen After TRIKE . 611, 626 (2000). (2000). 626 . 611, S 196 (Apr. 15, 2015,11:50 AM), OC EHAV HORTCUTS . 114, 116 (1993). organizing, S .S OST CI .B CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM O 187 M .S EV WITTER AND WITTER AND ,N OC .R ELETE ,T “Not This One”: SocialMovements, the Attention Economy, andMicroce- D , 57 , 57 A NN A key union appears to be backing away from one of labor’s most prominent prominent most one labor’s of from away to be backing appears union A key EVIVING THE EVIVING .P .&S OT note 187, at 73-74. 73-74. at 187, note LEVEY N 72-74 (2011) (calling the one-day strikea “tactic that cannotproduce significant A ,R OL ASH O C UFEKCI , 26 , 26 A 194 .P T W supra , 3(D URNS F. M CAD B MERICA 54-56, 67 (2016) (describing the “single day” strikes of “New Labor” as “symbolic” “symbolic” as Labor” “New of strikes day” “single the (describing (2016) 67 54-56, at 849, 852. at 211-12. at 211-12. A .A URNS EYNEP OE ANE M , GE Id. Id. SWALT V A 191-93 (2017). A 90 90 4O On the basic issue of increasing labor’s power, short strikes have been been have strikes short power, labor’s increasing of issue On the basic Movements need media, classically to mobilize supporters, validate validate supporters, to mobilize classically media, need Movements But not just any attention. Attention is relevant to the extent that it it that extent the to relevant is Attention attention. any just not But NNALS ILDED RANSFORM ROTEST 188. . J . 188. 189. . Lydia DePillis, DePillis, Lydia actions that do not empower workers or fundamentally impact corporate dominance). . 189. 195. . Z . 195. attention counts. It took Occupy Wall Street (“OWS”) eight nights of urban urban of nights eight (“OWS”) Street Wall took Occupy It counts. attention head- the section, Metro the Times—in York New the in appear to camping derision. with dripping line questioned on efficacy, on questioned 193. . Zeynep Tufekci, Tufekci, Zeynep . 193. media, specifically, has been the subject of scrutiny with the upshot being being the upshot with scrutiny of subject the been has specifically, media, translation. in lost often are messages movement important that gains for workers . . . .”). .”). . . . workers for gains campaigns 194. . 194. view and Assessment view 192. Snow, A. David & Benford D. Robert . covered it, but in substance referenced “police” three times more than the the than more times three “police” referenced in substance but it, covered P 187. . J . 187. T G Activists can frame stories, events, and themes any way they want. Now Now want. way they any themes and events, stories, frame can Activists survives. message any avalanche, information the amid is how, the question move- a has become critical itself “attention” As argues, Tufekci Zeynep resource. ment Actually, that’s their best feature. best their that’s Actually, base. the expand and cause, the one doubts they generate attention. Even skeptics slight the actions as as the actions slight skeptics Even attention. generate they one doubts interest. national ideally, or, local attracting at aimed strikes” “publicity A 191. William Gamson Gadi & Wolfsfeld, . “signals,” in Tufekci’s words, “capacities” to spread narratives that per- that narratives spread to “capacities” words, Tufekci’s in “signals,” usual. as business disrupt or elections, impact suade, day’s media is much more than “mass.” It is “social” and “participatory.” and “social” is It “mass.” than more much is media day’s lebrity Networked Activism Networked lebrity https://www.washingtonpost.com/news/wonk/wp/2015/04/15/one-union-appears-to-be-backing-away- 196. . 196. from-labors-most-prominent-campaign/ [https://perma.cc/CG43-45GV] (describing “some tension tension “some (describing [https://perma.cc/CG43-45GV] from-labors-most-prominent-campaign/ doesn’t focus on unionized employers”). employers”). B unionized on focus doesn’t . 190. within. . . unions about how much to spend on an effort that isn’t a traditional organizing campaign and 42394-ckt_95-1 Sheet No. 49 Side B 06/12/2020 13:18:38 B 06/12/2020 49 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 50 Side A 06/12/2020 13:18:38 200 Shrewd ’s (Oct. 17, 2011, 2011, 17, (Oct. (Oct. 8, 2011), IMES T EUTERS , R , N.Y. Combining impeccable post- impeccable Combining 91 91 198 Room for Debate: Occupy WallStreet And short strikers have proven to be to be proven have strikers And short 204 201 SHORT STRIKES (Oct. 19, 2011, 1:14 PM), PM), 1:14 2011, 19, (Oct. ) 6/10/2020 ) 12:03 PM IMES Clearing the lawns basically cleared the movement. movement. the cleared basically lawns the Clearing note 195, at 204 (“If there is a broad claim to be made about digital digital about made be to claim broad a is there (“If 204 at 195, note Yet, what OWS lacked in newsroom appeal it made made it appeal newsroom in lacked what OWS Yet, ELETE Protest Spurs Online Dialogueon Inequity D From a single hashtag, a protest circles the world the circles a protest hashtag, a single From 203 1. Short Strike “Attention” and Capacities “Attention” Strike 1. Short 197 note 195, at 199, 203, 221. 221. 203, at 199, 195, note OT supra N O supra 3(D Tufekci, #OccupyWallStreet became hashtag wildfire, jumping from a a from jumping wildfire, hashtag became #OccupyWallStreet Ilyana Kuziemko & Michael I. Norton, Norton, I. Michael & Kuziemko Ilyana at 213-14. 213-14. at notes 237, 239. at 212. at 212. at 214-15. at 214-15. Occupy’s famous political disinterest allowed its online narrative narrative online its allowed disinterest political famous Occupy’s 199 See See Id. Id. See See Id. SWALT V 202 2020] 2020] 4O , N.Y. T Tufekci’s point is that a movement’s true strength should be measured measured be should strength true movement’s a that is point Tufekci’s The deeper promise of short strikes, then, goes not to their status as as status to their not goes then, strikes, of short The promise deeper for digitally evangel as an notoriety achieved has Tufekci while First, ee also infra ee also S by its target’s perception of these three capacities, and it’s a mistake to to mistake a it’s and capacities, three of these perception target’s by its superior inherently an radiates activity online or “off”-line that assume signal. skilled virologists. The research here relates to “threshold” effects and how how and effects “threshold” to relates here research The virologists. skilled equality a marriage adopting say, action, zero-risk but not a low taking re- requires views, differing hold “friends” your where banner Facebook https://www.nytimes.com/2011/10/09/nyregion/wall-street-protest-spurs-online-conversation.html crash, mid-austerity timing and solid gold, 1% versus 99%, oppositional oppositional 99%, versus 1% gold, solid and timing mid-austerity crash, framing, 199. . 199. 3:15 PM), https://www.reuters.com/article/us-wallstreet-protests-social/from-a-single-hashtag-a-protest- PM), 3:15 197. . 197. . 198. word “inequality.” word online. all capacity, in narrative up for an hour. posts 15,000 to eventually skills to get zeroed-out by little electoral or—sequestered mostly in parks— mostly or—sequestered electoral little by zeroed-out get to skills capacity. disruptive media catnip but to the capacity-building potential of walking out for the the for out walking of potential capacity-building to the but catnip media triple-threat. a they’re understand activists account, day. On that potent the especially to limited is really praise full her protest, mass fueled messaging. viral of force narrative https://www.nytimes.com/roomfordebate/2011/10/18/the-psychology-of-occupy-wall-street/occupy- single retweet in Spain, to another from a Long Island teacher named “Cin- named teacher Island Long a from another to Spain, in retweet single poets, and vegans seven to activists, liberal dispersed from eight dy,” to technologies and social movements,it is that thesetools often greatly enhance narrative capacity. . . .”). Slogan 204. . 204. [https://perma.cc/77YU-UKX9]. [https://perma.cc/77YU-UKX9]. wall-streets-shrewd-slogan [https://perma.cc/3NSL-2S3R]. 203. . 203. circled-the-world-idUSTRE79G6E420111017 [https://perma.cc/SA3S-QHW2]. [https://perma.cc/SA3S-QHW2]. circled-the-world-idUSTRE79G6E420111017 202. . Tufekci, Tufekci, . 202. 200. . Ben Berkowitz, Berkowitz, Ben . 200. 201. . Jennifer Preston, Preston, Jennifer . 201. 42394-ckt_95-1 Sheet No. 50 Side A 06/12/2020 13:18:38 A 06/12/2020 50 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 50 Side B 06/12/2020 13:18:38 , 212 ACM Confer- th (Aug. 16,2016, INGER and short strikers strikers and short R 207 HE HE , T note 185 (describing how strikers strikers how (describing 185 note Simultaneously, region- Simultaneously, [Vol 95:1 [Vol story, 211 209 supra the Spotting the banner once or or once banner the Spotting , 2015 18 the of Proceedings 205 D’Onfro, Thatmeans “peripheral” allies toa 206 . 1, 5, 16-18. 16-18. 5, . 1, see also also see The Diffusion of Support in an Online Social Movement: Movement: Social Online an in Support of Diffusion The EL .R note 69; 69; note TweetingandRetweeting for Fight for $15: Unions as Dinosaur CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM NDUST supra The Mainstreaming of #BlackLivesMatter of Mainstreaming The .J.I note 195,at 16-17 (citing research). ELETE D RIT Trump Says He’s Weighing Democrats’ Plan for$15 Minimum Wage OT SEIU, Fight for $15’s funder, deploys a cautious, even even cautious, a deploys funder, $15’s for Fight SEIU, supra N O 208 The result is a gradually-expanding wage justice narrative narrative justice wage gradually-expanding a is The result , 2019 B , 2019 3(D 210 at 20. at 20. at 19, 22. (June2019, 20,9:59 https://www.bloomberg.com/news/articles/2019-06-21/trump- PM) Id. Id. Id. SWALT V 92 92 4O More broadly, the tactic’s “come-one-come-all” ethic and low ethic invest- “come-one-come-all” tactic’s the More broadly, LOOMBERG B 211. . Justin Sink, Sink, Justin . 211. 210. . 210. ence on Computer Supported Cooperative Work and Social Computing 1741, 1741-42 (2015). (2015). 1741-42 1741, Computing Social and Work Cooperative Supported Computer on ence twice—even on a close friend’s profile—tends not to be enough “social “social enough be to not profile—tends friend’s close a on twice—even 209. . 209. can, and do, target them with abandon. Scholarship has shown, for exam- shown, for has Scholarship with abandon. them do, target can, and to structure federated uniquely its leverages $15 deftly for Fight ple, how the across far leaders” “opinion and amateur both professional disperse “Twitterverse.” bland, approach to strike messaging that relies on its “historical institution- on its “historical relies that messaging to bland, approach strike activists, of members, views solidify to expert as a workplace al reputation” organizations. other and politicians, progressive Uber being Uber, striking drivers became a natural proxy for the plight of of for the plight proxy a natural became drivers striking Uber being Uber, at- even they that argued, has Dubal as Veena But workers. platform all 205. Adamic, Pictures Lada & Profile State Bogdon of Equal-Sign Adoption the from Evidence . peated exposures to others doing it first. it doing to others exposures peated cause hold the key to making a story become become story a making to key the hold cause ment, “happening-now” vibe effortlessly carve a wide valley for collecting collecting for valley a wide carve effortlessly vibe “happening-now” ment, narrative established on the piggybacked logically Googlers support. online on by playing attention attracted also workers but #MeToo, of breadth culture. and tech work precarious surrounding anxieties longstanding 207. . Victor Luckerson, Luckerson, . Victor 206. . 207. 10:13 AM), https://www.theringer.com/2016/8/16/16046810/black-lives-matter-social-media-activism- says-he-s-weighing-democrats-plan-for-15-minimum-wage [https://perma.cc/LMU7-8HH5]. says-he-s-weighing-democrats-plan-for-15-minimum-wage that cuts across union membership, issue interest, race, gender, and class. class. and gender, race, interest, issue membership, union across cuts that the become some—has then floor—and federal the doubling in, years Eight standards. living about to talking approach stock linked their action to “the burgeoning ‘new tech resistance’”). al Fight for $15 groups use creative images, emotional themes, and worker worker and themes, emotional images, creative use groups $15 for al Fight net- new “broker to register” ‘talking-on-the-streets’ a in “narrated stories proof” for most to make a move. to make most for proof” Is Google for good?” Manjoo, Manjoo, good?” for Google Is works by elbowing their way into spaces where [SEIU] wouldn’t penetrate penetrate wouldn’t [SEIU] where spaces into way their elbowing by works otherwise.” 55238f85d66b [https://perma.cc/F6RB-E2EP]. For this reason, the pejorative connotations of “slack- of connotations pejorative the reason, this For [https://perma.cc/F6RB-E2EP]. 55238f85d66b tivism”are exactly wrong: theinstantaneous, near effortless online activismof likes, clicks,and re- Tufekci, matter. tweets 208. Lorenzo Frangiet al., . Opinion Leaders? “[w]hatis it we want the company tobe,and . we areharnessing? what should.do we with thepower. 212. As one activist stated,online “discussions . expandedvery quickly,” from harassment to 42394-ckt_95-1 Sheet No. 50 Side B 06/12/2020 13:18:38 B 06/12/2020 50 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 51 Side A 06/12/2020 13:18:38 at Id. supra A tweet might get get might tweet A 215 Instead of the tactical of the tactical Instead 217 at 189-91, 221. She relies on the civil civil the on relies She 221. 189-91, at the protests are a marriage of of a marriage are the protests note 99 (describing how groups “use the the “use groups how 99 (describing note Id. 93 93 218 supra protests, since it lets activists skip skip activists lets it since protests, e the relational stability and leadership leadership and stability relational the e at 62-66. at 62-66. at 53-55. at 53-55. SHORT STRIKES weakened It is the sort of mix needed to eventually eventually to needed mix of the sort is It Id. Id. 219 213 ) 6/10/2020 ) 12:03 PM ELETE D 216 note193, 71, at75-77 (“Technology can help movements coordinate and note 193, at 77-78 (describing networked movements “unable to develop and and to develop “unable movements networked (describing 77-78 at 193, note OT note 107. N O supra supra supra 3(D Tufekci’s perspective is that the relative ease of assembling assembling of ease relative the that is perspective Tufekci’s SWALT V 214 2020] 2020] 4O Concededly, short strikes face electoral and disruptive capacity chal- capacity disruptive and electoral face strikes short Concededly, Yet, Tufekci’s take actually points to short strikes’ electoral and dis- and electoral strikes’ short to points actually take Tufekci’s Yet, the in-person negotiations that forg that negotiations in-person the capacity. disruptive or electoral to project necessary order and spirit, weathering internal transitions and displaying a procedural a procedural displaying and transitions internal weathering spirit, and order nimbleness. and messaging people to show up, but it doesn’t signal if they’ll vote or how they’ll react react or how they’ll vote if they’ll signal show up, but to doesn’t it people too. do the police if lenges. As the actions have grown, workers have struck companies, not not companies, struck have workers grown, have actions the As lenges. legal, not corporate, is better message and the animating governments, near- Moreover, secondary. but welcome, are Any GOTV effects treatment. inconven- corporate minimize to is crafted law of strike ounce ly every ience. 213. . Dubal, Dubal, . 213. Pope, time. every rights strike 214. federally-protected trump Tufekci, rights property 521. at 1, note Specifically, . . 215. 53. Logistics forthe massive Egyptianprotests in2011 were coordinatedthrough @TahrirSupplies— elsewhere. and UAE, the London, from tempted to gather a group to confront a system exquisitely designed to di- to designed exquisitely system a confront to group a to gather tempted of gig victory unprecedented an itself off—was it pulled actually vide—and a as crowds the historically- the of to dismiss Bush capacities President freed 216. disruptive protests War and anti-Iraq electoral weak the media-fueled but social large perspective, Tufekci’s From . to re-election. and glide a country, invade group,” “focus organize, but if corresponding network internalities are neglected, technology can lead to movements to movements lead can technology neglected, are internalities network if corresponding but organize, “adhocracy,” phenomenon this calls Tufekci’s support.”). of pillars essential missing while up scale that because“tasks can be accomplished in anadhoc mannerby whoever shows up andisinterested.” freezes and leadership voids Tufekci fears, Tufekci voids leadership and freezes groups digitally has generally generally has digitally groups ruptive potential. Institutions devoted to ground-level organizing pre-dated pre-dated organizing ground-level to devoted Institutions potential. ruptive (Fight established were Some Uber actions. and Google, the McDonald’s, and Change), Real for Walkout (Google incipient were some $15), for to media social on relied each but (RDU), between in something were some turnout. generate, necessarily not but facilitate, rights movement,particularly theintimate conversations, meetings, andlogistics that facilitatedthe a contrast. as boycott, bus Montgomery economy counter-narrative. economy in usually it was prioritized, necessity, by was, organizing on-line where 217. Uber, at Glaser, Even conversations. phone or . face-to-face to service agree on new paths to take” due in part to how technology creates leadership vacuums). message farewell internal Whittaker’s Meredith Tellingly, 219.2019. Summer in organizers strike the of Google Walkout forReal . Change, for example, remains strong despitethe departure of two focused not on harassment or retaliation but the company’s unaccountable AI capabilities, giving thanks thanks giving capabilities, AI unaccountable the company’s but or retaliation harassment on not focused tech toget in touch with [drivers], andthen organizeran place will phone a call anddiscuss issues the Tufekci, way”). that people to recruit try and . 218. 42394-ckt_95-1 Sheet No. 51 Side A 06/12/2020 13:18:38 A 06/12/2020 51 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 51 Side B 06/12/2020 13:18:38 , , “[I]t TRATEGY TRATEGY 227 Now the , 38 , 38 S and “noto- and 226 224 Reputation and the the and Reputation Onward! Another #Goog- Another Onward! (Oct. 25, 2018, 2:28 PM), 2:28 PM), 2018, 25, (Oct. (Jul. 18, 2019, 2:14 PM), PM), 2:14 2019, 18, (Jul. EWS OST The Fight for $15 Is Launching A A Launching Is $15 for Fight The N P [Vol 95:1 [Vol UFF EED F How outsiders perceive them . 56, 56 (2018). 56 (2018). . 56, , H EV UZZ 222 .R , B EL .R UB . 368, 369 (2004). 369 (2004). . 368, Reputations at Risk: Engagement during social media crises andthe socialmedia age is notthe best of , 44 P EV When a $15-an-hour bill recently passed the the passed recently bill $15-an-hour When a R 225 220 . 22, 23-24 (2007). (2007). 23-24 . 22, The Fight for$15Will Use Its MemberstoGetthe Vote Out note 225, at 97. 97. at 225, note CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM EV Exploring the relationship between corporate reputationand thepub- R (Jul. 16, 2019), https://medium.com/@GoogleWalkout/onward-another- supra ELETE EPUTATION In the best of times, it is “highly fragile” “highly is it times, of best the In D The Role of Corporate Reputation in Determining Investor Satisfaction and and Satisfaction Investor in Determining Reputation Corporate of Role The .R 223 OT Progressive Wonthe Minimum Wage Fight—Now They Think They Can Do It EDIUM Social media, reputation riskand ambient publicity management N ORP O EPUTATION ,M , Cora Lewis, (Oct. 6, 2016, 11:48 AM), https://www.buzzfeednews.com/article/coralewis/fight-for- AM), 11:48 6, 2016, (Oct. . 97, 97 (2015). 97 (2015). . 97, 3(D .R , 6 C EV 43, 46 (2010). ORP EWS .R N See, e.g. See, EL SWALT V 221 , 10C .R EED 94 94 4O As for disruptive capacity, the reality is that since short strikes are, are, strikes short is that since the reality capacity, As for disruptive F UB EADERSHIP UZZ House, Fight for $15 was called “a road map for the left,” with Medicare Medicare with left,” the for map road “a called $15 was for House, Fight destina- future all tuition college free and Deal, New Green the for All, tions. Again With Health Care And The Green New Deal lic’s crisiscommunication on socialmedia https://www.buzzfeednews.com/article/addybaird/progressives-15-wage-medicare-all-green-new-deal https://www.buzzfeednews.com/article/addybaird/progressives-15-wage-medicare-all-green-new-deal public claps back, with an amazing half of social media users launching launching users media social of half amazing an with back, claps public month. each networks follower and friend across complaints virtual 220. . 220. 223. . Sabrina Helm, Helm, Sabrina . 223. Loyalty 227. . Ott & Theunissen, Theunissen, & Ott . 227. &L to the “many hundreds of Googler establishing themselves as leaders, contributing their brilliance to to brilliance their contributing leaders, as themselves establishing Googler of hundreds “many to the organizing, and refusing to stand silent.” Google WalkoutReal For Change, leWalkout Goodbye Baird, Addy [https://perma.cc/3RFL-6266]. . 221. cultivate a credible electoral signal and, tellingly, the oldest of the three has three of the has the oldest tellingly, and, signal electoral a credible cultivate just that. to attempt evolved riously difficult tomanage,” https://www.huffpost.com/entry/fight-for-15-get-out-the-vote_n_5bd1f8fee4b055bc9489c2cb affects pricing strategies, the applicant pool, investor interest, and ultimate- interest, investor pool, applicant the strategies, pricing affects line. bottom the ly well, short—and, to this point, small—production stalls are unlikely. In- unlikely. are stalls small—production point, this to short—and, well, to reasons good have Companies the brand. to be about going it’s stead, reputations. public their about care deeply 226. Bowen Zheng et . al., 41 P 41 225. Theunissen, Petra & Ott . Larissa 15-get-out-the-vote [https://perma.cc/B6YE-PRT3]; Dave Jamieson, Jamieson, Dave [https://perma.cc/B6YE-PRT3]; 15-get-out-the-vote times. In fact, it has upended the business literature on reputation risks, risks, on reputation literature business the upended has it fact, In times. party the of receivers” “passive as the public positioned long which had it. craft should companies how about mostly worried and line pany’s own aspirational projection of what it “will deliver in terms of products, services, and customer customer and services, products, of in terms deliver it “will what of projection aspirational own pany’s googlewalkout-goodbye-b733fa134a7d [https://perma.cc/M8TV-ZQL2]. B 224. . Pekka Aula, Aula, Pekka . 224. [https://perma.cc/KY2C-YYX4]. com- a to referring brand with terms, 222. distinct are “reputation” and “brand” literature, the In . the of impressions negative or positive overall public’s the to referring reputation and experience,” Druckenmiller, Bob & Argenti A. Paul conduct. future and actions past company’s Corporate Brand Corporate Get-Out-The-Vote Campaign For The November Elections November The For Campaign Get-Out-The-Vote 42394-ckt_95-1 Sheet No. 51 Side B 06/12/2020 13:18:38 B 06/12/2020 51 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 52 Side A 06/12/2020 13:18:38 But 229 note 156, at 670-71. supra at 671. at 671. Id. The result is a “snowballing is a “snowballing The result Id. 230 95 95 232 228 SHORT STRIKES note 225, at 101 (“Highly accommodative strategies appear to that invites righteous anger from corporate out- corporate from anger righteous that invites (and anger, the most dangerous “emotion on the the on “emotion dangerous most the anger, (and note 225, at 98. A social movement perspective might suggest that that suggest might perspective movement social A 98. at 225, note note 225, at 100. 100. at 225, note ) 6/10/2020 ) 12:03 PM 233 supra 235 234 supra supra note 226, at 61. ELETE D OT supra N note 224, at 44. note 224, at 46. note 224, at 44. O A recent finding is that the better a company’s baseline baseline company’s a better the that is finding recent A 3(D 231 supra supra supra much of that literature is founded on complaints that engage engage that complaints on founded is literature that much of Ott & Theunissen,Ott & at 60. The public seems, in other words, to hold well-regarded companies to a higher at 46-47. 46-47. at 236 See See Id. Id. SWALT V 2020] 2020] 4O Of course, not every short strike will generate enough virtual wake to to wake virtual enough generate will strike short every not Of course, Nonetheless, the current best practice is for companies to dip their toes toes dip their to companies is for practice best current the Nonetheless, Short strikes are basically anthropomorphized complaints, live- complaints, anthropomorphized basically are Short strikes adequacy, or appropriateness of [past] practices into question.” Edelman, Edelman, question.” into practices of [past] appropriateness or adequacy, Changes that follow are often “overt and consciously designed.” designed.” consciously and “overt often are follow that Changes strikes represent “exogenous shocks” to corporate reputation, creating a crisis that “calls the legitimacy, legitimacy, the “calls that a crisis creating reputation, corporate to shocks” “exogenous represent strikes 236. Theunissen, & Ott . be more successful than denialordiminishing strategies—especiallyifthey are combined with actions critics.”). its to listening is Aula, organization the demonstrate that . 235. 234. . 234. 233. . Aula, Aula, . 233. moral standard that, once broken, provokes particular outrage. outrage. particular provokes broken, once that, standard moral 232. . 232. 231. . Zheng et al., al., et Zheng . 231. 230. . Ott & Theunissen, Theunissen, & Ott . 230. 229. . 229. sustain, or even make, online or offline headlines. And while organization organization while And headlines. offline or online make, even or sustain, opera- to business threat the “primary risk reputation called have theorists value” market and tions siders and demands answers from corporate insiders. Maybe a company’s company’s a Maybe insiders. corporate from answers and demands siders tracks it maybe Or conversation. the prolonging sideways, goes response instantly literature—Google, in the advised course the accommodative is company that the senses public the path—and took this ground, giving and learning. listening into the fray. Social media manufactures a “collective truth” where “imag- where truth” a “collective manufactures media Social into the fray. repu- challenge” and fabricate both and rumors myths, stories, es, symbols, them. without proceed dialogue the let cannot and businesses tations, few, it turns out, are competent interlocutors. Most resort to old media tac- media old to resort Most interlocutors. competent are out, turns it few, crises online fuel to tend which and persuasion, justification, denial, of tics for disapproval.” fodder further by “offering 228. . Aula, Aula, . 228. is almost impossible,” one study concluded, “for organizations to control control to organizations “for concluded, study one impossible,” is almost themselves.” about conversations internet”) reputation, the bigger the the snowball. bigger the reputation, streamed. Always, the action will be packaged and repackaged across so- across repackaged and packaged be will action the Always, streamed. “dialogue” as media cial of negative comments” that intimidates the company’s genuine supporters supporters genuine the company’s intimidates that comments” of negative into silence. 42394-ckt_95-1 Sheet No. 52 Side A 06/12/2020 13:18:38 A 06/12/2020 52 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 52 Side B 06/12/2020 13:18:38 . , UT Id. C HILA and Em- ARBER ITIZENS ITIZENS HE , P One year C 239 (Nov. 4, 237 (Aug. 16, , T R. B This merely merely This The restaurant Id. ODAY RIBUNE Id. T WALLOW .T S HI ENJAMIN denunciatory posts.” , USA , C 238 ,B Consumerism Versus Pro- Versus Consumerism AND , their Employees at Naperville Buffalo but the corporate obses- corporate but the DULTS See, e.g. [Vol 95:1 [Vol A 241 Applebees then began selectively delet- selectively began then Applebees Id. NFANTILIZE A follow-up explanation “wassoon buried under , Suzanne Baker, L.J.340, 344-49 (2007).key political A question ,I Id. (Mar. 5, 2014, 3:11 AM), AM), 3:11 2014, 5, (Mar. McDonald’s to the SEC: Strikes Hurt, and We Might We Might and Hurt, Strikes SEC: to the McDonald’s ALE In the meantime, Applebees tried responding to specif- to responding tried Applebees meantime, the In Id. See, e.g. See, at 100. ALON HILDREN C Id. Law, 117 117 Y Law, Moreover, a little virality goes a long way. Kylie Kylie a long way. goes virality little a Moreover, , S CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT note 225, at 99. As word of the incident spread online, the company company the online, spread incident the of word As 99. at 225, note ) 6/10/2020 ) 12:03 PM A Kylie Jenner Instagram Post is Worth a Million Dollars Million a Worth is Post Instagram Jenner Kylie A ORRUPT 240 C ELETE supra D OT note 8; Josh Eidelson, N ARKETS O M supra 3(D OW OW :H SWALT V (Apr. 12, 2019), https://www.inquirer.com/news/starbucks-incident-philadelphia-racial-bias- 177 (2007). (2007). 177 96 96 4O Yet, workplace injustices can and do make for viral moments, viral for make and do can injustices Yet, workplace UMED $ HOLE ON NQUIRER nationwide racial-bias training for the company’s 175,000 employees.”). employees.”). 175,000 company’s the for training racial-bias nationwide 240. . Cheng, Cheng, . 240. Finally, Applebees quit using Facebook. Facebook. using quit Applebees Finally, “enraged online users further and prompted them to also copy and paste paste and copy to also them prompted and further users online “enraged ic customer commentsby cutting andpasting lines fromthe variousjustifications. Have to HikePay announced that the waitress had violated Applebee’s privacy policy, though it soon emerged that the the that emerged it soon though policy, privacy Applebee’s violated had waitress the that announced later: A timeline of controversy and progress since the Starbucks arrests seen ‘round the world the ‘round seen arrests Starbucks the since progress and controversy of A timeline later: and small businesses, and “consumerism,” focusing on the demand-side interests of purchasers, has has purchasers, of interests demand-side the on focusing “consumerism,” and businesses, and small stores big-box of rise the on focused scholars other and theorists, political historians, to interest of been SEC disclosures, at least, suggest that some large employers do fear short short fear do employers large some that suggest least, at SEC disclosures, fall-out. financial strike you do why 10%, God give “I tip, a mandatory to response in 239. scribbled, had who customer a of receipt A rich example . comes from a waitress fired from Applebees for using Facebook topost the Theunissen, & Ott 18?” get negativity,” leading the company to repost it. it. to repost company the leading negativity,” ing critical responses, sparking callsof censorship. company had itself published receipt messages on Facebook, fueling further outrage. outrage. further fueling on Facebook, messages receipt published itself had company cus- of importance the on message a Facebook releasing and receipts online all deleting by responded comments. irate 10,000 over amassed which privacy, tomer among customers that the food is unsafe” as the company’s “primary concern”); Anna Orso, Orso, Anna concern”); “primary company’s the as unsafe” is food the that customers among that arises is whether the public is more likely to see its interests aligned with cheap goods or fair fair or goods cheap with aligned interests its see to likely more is public the whether is arises that time. every out win will prices low believe Some workplaces. 2019, 5:06 PM), https://www.chicagotribune.com/suburbs/naperville-sun/ct-nvs-naperville-buffalo- PM), 5:06 2019, (Jul. 26, 2018), https://www.thecut.com/2018/07/kylie-jenner-instagram-posts-worth-millions.html https://www.thecut.com/2018/07/kylie-jenner-instagram-posts-worth-millions.html 2018), 26, (Jul. Jenner may make $1 million an Instagram post, Instagram an $1 million make may Jenner 241. . Opheli Garcia Lawler, https://www.salon.com/2014/03/04/mcdonalds_to_sec_strikes_hurt_and_we_might_have_hike_pay/Garcia Opheli [https://perma.cc/LHQ6-MF5V]. . 241. I W treatment. 237.customer racist or products unsafe And, to be sure, many . high-profileexamples of viral corporatecatastrophes have involved shared been had incident] the [about post the night Sunday of (“[A]s [https://perma.cc/M8W5-CH59] Meyer, Zlati & Bomey Nathan comments.”); 3,000 nearly generated and times 4,400 than more ill in Ohio fall hundreds after food safety on workers all to retrain Chipotle [https://perma.cc/9YXY- one-year-anniversary-stutter-dilworth-park-homeless-tables-20190412.html Twitter, on viral went Robinson Donte and Nelson Rashon of arrest the of video a (“After 7NTX] . followed, as didweeks. an of apology protests tour by . atStarbucks the Starbucks leadership and 238. of workers interests and rights on the supply-side focusing “producerism,” between . A tension Whitman, Q. James wages. high over prices low privilege to seem that ducerism:Study A inComparative consumerist sympathies, like product quality or customer service. customer or quality product like sympathies, consumerist the restaurant at incident racist described customers after fired Wings Wild sion with mere pockets of online reputation is the better tell. Today, so- tell. better is the reputation online of pockets mere sion with showered are followers” 1,000 as few “as with “nanoinfluencers” called C 2018, 3:02 PM), https://www.usatoday.com/story/money/2018/08/16/chipotle-mexican-grill-food- safety-retraining/1008398002/ [https://perma.cc/5L5A-GC4M] (citing “thethreat of renewedperception wild-wings-employees-terminated-st-1104-20191104-doprfxa5c5bvbnum2a4e74vb5y-story.html ployee mistreatment may not be as consistently resonant. as be may not consistently ployee mistreatment [https://perma.cc/B2QK-4A9R]. [https://perma.cc/B2QK-4A9R]. 42394-ckt_95-1 Sheet No. 52 Side B 06/12/2020 13:18:38 B 06/12/2020 52 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 53 Side A 06/12/2020 13:18:38 . , . TR 244 AG M .C ELOITTE ES ANAGING ANAGING R IME ,D They are They are , T EW EW .M ,P 248 (Nov. 11, 2018), They are also also They are 243 IMES (2019). BI ET AL leading to hand- leading None of this ap- this None of 245 250 L. U , N.Y. T Alone among genera- among Alone HISPERER HISPERER 247 W ANNAH Apparently, every boost— every Apparently, 39 (2015). 242 The ME ME ME The Generation 97 97 ILLENNIAL (2017); H M IVERSITY .D HE US ,T ANUAL J. B C. Millennials C. Millennials UFF M T SHORT STRIKES , 15 HRIS ) 6/10/2020 ) 12:03 PM ILLENNIAL Are You Ready for the Nanoinfluencers? the for Ready You Are M (2017); C ELETE D A New Political Generation: Millennials and the Post-2008 Wave of Protest Wave Post-2008 the and Millennials Generation: Political New A HE OT Millennials Are the Largest Generation in the U.S. Labor Force Labor U.S. the in Generation Largest the Are Millennials N ,T O The Millennial Mindset: Work Styles and Aspirations Millennials of Aspirations and Styles Work Mindset: Millennial The UMMIES , D 3(D . 1, 6-7 (2017). (2017). 6-7 1, . ENKINS EV J at 6. 6. at .R As this research develops various snapshots are coming into fo- into coming are snapshots various develops research this As Id. See, e.g. See, Id. messages reinforced by Millennial pop stars. by Millennial reinforced messages SWALT V OC YAN 246 2020] 2020] 4O 249 Millennial culture—what twenty- and thirty-somethings want, and es- and want, thirty-somethings and twenty- culture—what Millennial The place to begin is attitudinal surveys, which belie caricatures of a a of caricatures belie which surveys, attitudinal is begin to place The Famous or not, paid influencers tend to be young, as companies see see companies as young, to be tend influencers paid or not, Famous .S M ILLENNIALS FOR 249. . 249. tions, Millennials are unabashed leftists. Compared to Boomers, they are are they Boomers, to Compared leftists. unabashed are Millennials tions, in joining interested more seemingly socialism, support to as likely twice par- an established than movements political issue-based” or “independent patriots. as themselves label to likely less a quarter over ty, and (May20, 2014), http://content.time.com/time/covers/0,16641,20130520,00.html [https://perma.cc/TTX8-J72M]. (Apr. 11, 2018), https://www.pewresearch.org/fact-tank/2018/04/11/millennials-largest-generation-us- (2017),https://www2.deloitte.com/content/dam/Deloitte/us/Documents/process-and-operations/us- cus, and in one frame, the Millennials are out on strike. Their workplace workplace Their strike. on out are Millennials the frame, in one cus, and or morning, day, one stoppage the of revival a sustained be may legacy time. a at afternoon adolescence. extended and entitled self-centered genera- not species, in a difference 244. suggest seemingly books recent three just R of tions: titles The . https://www.nytimes.com/2018/11/11/business/media/nanoinfluencers-instagram-influencers.html [https://perma.cc/LCC3-V8PQ]. 242. . Sapna Maheshwar, Maheshwar, Sapna . 242. M Demographically, they have taken over the workplace, the taken over have they Demographically, with cash and gifts to perform for the brand. the for perform to gifts and cash with 245. Fry, . Richard or hit—matters. or hit—matters. reputations. for online force mediating a key as Millennials wringing and, for executives, white papers analyzing how, or whether, to to whether, how, or analyzing papers white executives, for and, wringing adapt. markedly more progressive on immigration, race, LGBTQ, and drug is- LGBTQ, race, on immigration, progressive more markedly sues, pecially how they act—is a subject of much fascination and speculation. fascination much of subject a act—is how they pecially who Stein, Joel narcissists trend. the entitled typified 247. “lazy, of parents” their depiction with live still Generation” ME ME “ME 2013 Magazine’s Time . 248. . Ruth Milkman, Ruth . 248. A 82 a third, and final, key to the short strike surge. surge. strike short to the key final, and a third, labor-force/ [https://perma.cc/43AJ-UZVF]. . 246. cons-millennial-mindset.pdf [https://perma.cc/BQ6S-V6NL]; Travis J. Smith & Tommy Nichols, Nichols, Tommy & Smith J. Travis [https://perma.cc/BQ6S-V6NL]; cons-millennial-mindset.pdf 243. . 243. Understanding the Millennial Generation Millennial the Understanding 42394-ckt_95-1 Sheet No. 53 Side A 06/12/2020 13:18:38 A 06/12/2020 53 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 53 Side B 06/12/2020 13:18:38 A , 28 , 28 ,U.S. (May (May ALON but three three but , S 258 OWS, Black 256 Jonathan Vespa, Milkman notes notes Milkman 257 261 —it’s because they they because —it’s See also See 253 [Vol 95:1 [Vol but the stronger analysis is is analysis but the stronger 252 111 (2019). All are adept digital media or- media digital adept are All 259 ECADE D This has led, predictably, to cynicism cynicism to predictably, led, has This 254 Taylor Swift calls outWhite House duringVMAs acceptance 251 HEFT OF A T HE CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM Why millennials will miss Boomers when they’re gone they’re when Boomers miss will millennials Why ,T ELETE D note 248, at 2. at 2. 248, note note 248, at 7. at 7. 248, note note 248, at 9-10. OT TERNBERG N Beyond Generational Politics: Do Millennials Constitute a Political Category Political a Constitute Millennials Do Politics: Generational Beyond O supra supra supra C. S Parsing further survey and narrative data, Nick Serpe con- Nick Serpe data, and narrative survey further Parsing , Whitney Friedlander, (Aug. 9, 2017), https://www.census.gov/library/stories/2017/08/young-adults.html https://www.census.gov/library/stories/2017/08/young-adults.html 2017), 9, (Aug. 3(D As their “new collective impulses” develop, impulses” collective “new their As 255 Keith A. Spencer, at 15, 19. at 2-3, 12. 12. at 2-3, at 7-9. 7-9. at at 8, 14 (“[T]he political realignment suggested by Pew’s polling and the flourishing of of flourishing the and polling Pew’s by suggested realignment political (“[T]he 14 8, at 260 OSEPH UREAU Id. Id. Id. See e.g. See See See Id. SWALT V .8, F. 10-11 (2019). B AB 98 98 4O Sociologist Ruth Milkman takes this point and runs with it, bringing it, bringing with and runs point this takes Milkman Ruth Sociologist Results like these can be (and often are) explained away as a cyclical cyclical a as away explained are) often (and be can these like Results , CNN, (Aug. 28,2019, 12:17AM) (“Swift wasn’t. theonly French performer. to getpolitical. L EW ENSUS 259. . 259. 258. . 258. political. If Millennials are slow to adopt the conventional trappings of of trappings conventional the adopt to slow are Millennials If political. own on their than home at live adulthood—more Montana and ‘GLOW’ star Alison Brie took a pro-immigration stance.”) https://www.cnn.com/2019/08/26/entertainment/taylor-swift-vmas-equality-politics/index.html Third of Young Adults Live With Their Parents: Jobs, Marriage and Kids Come Later in Life in Later Come Kids and Marriage Jobs, Parents: Their With Live Adults Young of Third can’t. They’re trapped in “waithood,” with debt, terrible jobs, and a historic and a historic jobs, terrible debt, with in “waithood,” trapped They’re can’t. thank. laziness—to recession—not but people,” “older on may be trained disdain Millennial that much cludes old.” are they because “not charge, in are they because is that 260. . 260. millennials have contributed to growing opposition to the political and economic establishment— economic and political to the opposition growing to contributed have millennials young.”). than people older more contains Milkman, establishments, all like which, . 257. speech and the full battery of mental health concerns, but also, increasingly, to to increasingly, also, but concerns, health mental of battery full and the radicalism. C favor direct action and the fourth, focused on Title IX enforcement, has has enforcement, IX on Title focused fourth, the and action direct favor #MeToo. with merged since seemingly 250. . 250. computer- as Boomers, of stereotype millennial (“The [https://perma.cc/FJ9X-EZ8D] theyre-gone/ J .”). . . . tion . 253. [https://perma.cc/96PV-3D77]. .Milkman, Serpe, 254. .Nick 255. N pears to be a function of youth, and the numbers generally hold within ra- within hold generally numbers the and youth, of a function to be pears sub-groups. cial education and “parents-just-don’t-understand” culture clash, culture “parents-just-don’t-understand” ar- to movements Millennial-led prominent four to lens Mannheim’s Karl generation.” political a “new define adults young gue that 252. . 252. Lives Matter (“BLM”), the Dreamers, and campus anti-sexual assault assault anti-sexual and campus Dreamers, the (“BLM”), Matter Lives change, to and approaches memberships in differ movements 12, 2019 11:30 PM, https://www.salon.com/2019/05/12/why-millennials-will-miss-boomers-when- ganizers. 256. . 256. do. not point to. an inevitableradical. movements battle with the grays.The forcesthat have forged illiterate gullible reactionaries . . . denies the radical political lessons that Boomers left for our genera- our for left Boomers that lessons political radical the denies . . . reactionaries gullible illiterate [https://perma.cc/C442-7GDZ]. [https://perma.cc/C442-7GDZ]. 251. . Milkman, Milkman, . 251. 42394-ckt_95-1 Sheet No. 53 Side B 06/12/2020 13:18:38 B 06/12/2020 53 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 54 Side A 06/12/2020 13:18:38 . , M 272 ,A ALLUP (Nov. 1, 1, (Nov. , G ATION The bet is is The bet The work- The (Jan. 31, 2019), 2019), 31, (Jan. N 267 262 AIR HE F 275 , T gun violence, 271 ANITY , V That reality, and the bad jobs jobs bad and the reality, That 99 99 Sixty-five percent of the rest say say rest the of percent Sixty-five and immigration. 266 . PM), 2:35 2019, 19, (May J. If so, walkouts, expanding across across expanding walkouts, so, If The Millennialization of American Labor American of Millennialization The T 264 274 S 268 ALL , with air mattresses—related to voting to voting mattresses—related air , with ‘Playing Catch-Up in the Game of Life.’ Millennials Ap- Millennials Life.’ of Game the in Catch-Up ‘Playing in SHORT STRIKES , W climate change (twice), change climate 270 ) 6/10/2020 ) 12:03 PM Millennials: The Job-Hopping Generation at least some of it is getting channeled by the insti- the by channeled getting is it of some at least 263 ELETE D Students are Walking out of School on Election Day on Election of School out Walking are Students sexual misconduct, sexual note 248, at 3. at 3. 248, note All approach their forties “in worse financial shape than than shape financial worse “in forties their approach All Broad City and the Pivot to Millennial Rage to Millennial the Pivot and City Broad OT 273 N 265 O supra 3(D at 12, 25-26. 25-26. 12, at at 5. 5. at discrimination, Id. Id. Id. (May 1, 2019), https://prospect.org/labor/millennialization-american-labor/ https://prospect.org/labor/millennialization-american-labor/ 1, 2019), (May SWALT V 269 2020] 2020] 4O Indeed, as stereotypes evolve to encompass a more precise architype architype precise more a to encompass evolve as stereotypes Indeed, Part of Milkman’s case, in fact, is that the emerging pattern of Millen- pattern the emerging is in fact, that case, Part of Milkman’s ROSPECT 269. . Student Nation, Nation, Student . 269. 268. . Milkman, Milkman, than three times” the rateofnon-millennials). . 268. place increasingly seems like a vanishing point. point. a vanishing like seems increasingly place rage,” of “Millennial of three-quarters Over unions. shop-floor: to the it to direct designed tution members. Millennial are members new proach Middle Age Crisis Age in Middle proach 266. Overberg, Paul & Adamy Janet . https://www.wsj.com/articles/playing-catch-up-in-the-game-of-life-millennials-approach-middle-age- that many will stick around—and strike to fix the one they have. the to fix one they have. strike around—and stick that many will parts constituent the where “wave” a protest of makings the has unrest nial another.” one emulate and from “learn 263. . Sonia Saraiya, Saraiya, Sonia . 263. 262. . 262. P in-crisis-11558290908?ns=prod/accounts-wsj [https://perma.cc/CTZ4-Q2J6]. [https://perma.cc/CTZ4-Q2J6]. Amy in-crisis-11558290908?ns=prod/accounts-wsj Adkins, . 267. online education, online . 261. they like unions. they like that that their “strategic . . have . repertoires begun to converge.” https://www.vanityfair.com/hollywood/2019/01/broad-city-millennial-rage-ilana-glazer-abbi-jacobson 2018), https://www.thenation.com/article/why-students-are-walking-out-of-school-on-election-day/ https://www.thenation.com/article/why-students-are-walking-out-of-school-on-election-day/ 2018), an incredible diversity of topics, are unmistakably part of the crest. In just just In the crest. of part unmistakably are topics, of diversity an incredible walkouts— organized have schoolers high months, twenty-four past the walk a occasion, and, on one every living generation ahead of them.” of ahead generation living every https://www.gallup.com/workplace/231587/millennials-job-hopping-generation.aspx more . . . year past the within jobs . changed . . percent] (“[Twenty-one [https://perma.cc/THL9-YCLN] rights, beneath it, bring unprecedented instability—but also less to lose. From From lose. to less also instability—but unprecedented it, bring beneath rebel- more spot: sweet resistance a of something offer strikes short there, or sabotage than risk less rally, or petition, editor, the to a letter than lion as reputation Millennials’ behind data analyzing Gallup, longer. anything feels that job a want just they that is reality “the insists quitters, inveterate it.” find they until looking keep will they worthwhile—and [https://perma.cc/HV26-35GP]. [https://perma.cc/HV26-35GP]. . 265. [https://perma.cc/4CBC-YGRK]. [https://perma.cc/DAA3-TERT]. 264. Miller, Ethan & Blado, Kayla Barrows, Kate . 42394-ckt_95-1 Sheet No. 54 Side A 06/12/2020 13:18:38 A 06/12/2020 54 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 54 Side B 06/12/2020 13:18:38 , ATION , N.Y. N Protesting Protesting HE , CNN (May , CNN (May , T (Sep. 21, 2019 IMES T Millennials may not not may Millennials , N.Y. 276 . (Sep.13, 2019, 5:47 PM), (Mar. 14, 2018), 2018), 14, (Mar. [Vol 95:1 [Vol RIB Wisconsin students walkout to protest to protest walkout students Wisconsin IMES .T T HI Global Strike ,C (Oct.18, 2019, 6:08 PM), PM), 6:08 2019, (Oct.18, EWS N CONCLUSION , N.Y. National School Walkout: Thousand Protest Against Gun Gun Against Protest Thousand Walkout: School National CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM Global Climate Strike: Record number of students walkout of students number Record Strike: Climate Global Students at an Arizona school walkout after classmate was turned over to ELETE ,ABC D Silicon Valley Came to Kansas Schools. That Started a Rebellion. Started That Schools. Kansas to Came Valley Silicon An Injury to All: The past and future of the American strike American the of future and past The All: to Injury An Unlike high school, they’ll even have a right to do it. it. to do a right have even they’ll school, high Unlike Lock-Ins and Walkouts: The Students Changing City Schools From the Inside Matteson School Dist. 159 students, community members plan protest over over protest plan members community students, 159 Dist. School Matteson OT (May 7, 2019, 5:05 PM), https://www.cnn.com/2019/05/07/us/arizona-high- N 278 O In other words, if Milkman is right about the wave, it’s high high it’s the wave, about right is Milkman if words, other In 3(D 277 ,CNN (Sep. 5, 2019), https://www.nytimes.com/2019/09/05/nyregion/student-activists-nyc- 2019), 5, (Sep. Id. SWALT V (Apr. 21, 2019), https://www.nytimes.com/2019/04/21/technology/silicon-valley-kansas- 2019), 21, (Apr. IMES 100 100 4O All these actions were fleeting, and all also build skills that translate to to translate that skills build also all and fleeting, were actions these All This essay tries to move beyond some of the more obvious reasons for for reasons more obvious the some of beyond to move tries This essay T IMES Blinder, Alan & Yee Vivian 272. . Violence Across the U.S. https://www.chicagotribune.com/suburbs/daily-southtown/ct-sta-matteson-school-district-protest-st- (Mar. 21, 2019), https://www.thenation.com/article/erik-loomis-history-of-american-strikes/ personally know a union member (other than a teacher), but their peers peers their but teacher), a than (other member a union know personally campaign, leave paid a support wage, minimum the increase to would vote “la- journalists, and academics, intellectuals, Among a strike. and “like” the since been has it as today strong as arguably is resonance cultural bor’s late-1940s.” https://abcnews.go.com/US/wireStory/wisconsin-students-walk-protest-racial-slur-firing-66373877 https://abcnews.go.com/US/wireStory/wisconsin-students-walk-protest-racial-slur-firing-66373877 the workplace. Millennials have grown up in a time where labor is small is small where labor a time have grown in up Millennials the workplace. is big. it, puts Yeselson Rich as but “laborism,” the apparent rise of limited duration work stoppages. There are surely labor labor surely are There stoppages. work duration limited of rise apparent the 24, 2019, 6:29 AM), https://www.cnn.com/2019/05/24/world/global-climate-strike-school-students- AM), 6:29 2019, 24, schools.html [https://perma.cc/9MAS-G6M9]. [https://perma.cc/9MAS-G6M9]. schools.html 270. . Eliza Shapiro, Eliza . 270. Gerretsen, Isabelle [https://perma.cc/JE53-MWPQ]. . 271. tide work and we should expect to see more and more Millennials march- Millennials more and more to see expect should we and work tide door. the ing out T schools.html [https://perma.cc/LYE5-RT3N]; Todd Richmond, https://www.nytimes.com/2019/09/20/climate/global-climate-strike.html[https://perma.cc/9EXV- https://www.nytimes.com/2018/03/14/us/school-walkout.html [https://perma.cc/4544-94KS]. 274. . Zak Koeske, Zak . 274. hiring of principalaccused of sexual misconduct N.Y. racial slur firing racial slur school-protest-trnd/index.html [https://perma.cc/MQ8G-DJUG]. [https://perma.cc/MQ8G-DJUG]. school-protest-trnd/index.html ZBDP] (“By late morning, protestors across the Eastern Seaboard were streaming out of schools . . . .”). . .”). . . schools of out streaming were Seaboard Eastern the across protestors morning, late (“By ZBDP] 0915-20190913-4o5qnu5e7zaotha4r2eb545vxm-story.html [https://perma.cc/3YZS-GXQX]. agents border [https://perma.cc/GJZ9-KBHM]. [https://perma.cc/GJZ9-KBHM]. 273. . Nellie Bowles, Nellie . 273. protest-climate-change-intl/index.html [https://perma.cc/H27H-9M4Z]; Somini Sengupta, Sengupta, Somini [https://perma.cc/H27H-9M4Z]; protest-climate-change-intl/index.html 276. . Rich Yeselson, Yeselson, Rich . 276. 275. Ray . Sanchez et al., 277. . 277. Anti- or Pro- Parents Make Strikes Teacher Do al., et 278. Hertel-Fernandez Alexander literature. Theeconomics notion thatpast strikes prime . future strikeshas developed some recent support inthe Labor? The Effectsof Labor UnrestonMass Attitudes 3 (Oct. 29,2019) (unnumbered workingpaper) (on file withthe WashingtonCenter for Equitable Growth) (“[F]irsthand exposurethe to strikes was strike.”). on going and union a joining in interest personal . . greater . with correlated Climate Change, Young People Take to to Streets Take People Young Change, Climate a in 42394-ckt_95-1 Sheet No. 54 Side B 06/12/2020 13:18:38 B 06/12/2020 54 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 55 Side A 06/12/2020 13:18:38 , Google, Google, Operating Operating 284 281 But the Board 280 285 -style stoppage is under under is stoppage -style The same Board now lets lets now Board same The make short strikes riskier. riskier. strikes short make 283 286 101 101 or are so furiously repetitive that that repetitive so furiously or are 279 SHORT STRIKES The Board has newly said it actually requires requires actually it said has newly The Board Washington Aluminum Washington 282 ) 6/10/2020 ) 12:03 PM Google Urged the U.S.to Limit Protection Activist For Workers ELETE D OT N O , Wyndham Resort Dev. Co., 356 N.L.R.B. 765, 766 (2011). (2011). 766 765, N.L.R.B. 356 Co., Dev. Resort , Wyndham 3(D (Jan. 24, 2019 4:00 AM), https://www.bloomberg.com/news/articles/2019-01-24/google- See, e.g. See, SWALT V 2020] 2020] 4O Cumulatively, these and other decisions and other these Cumulatively, At least, those are some optimistic takes. Here’s the bad news. The The bad news. the Here’s takes. optimistic some are those At least, LOOMBERG the first-person plural pronoun.”). pronoun.”). plural first-person the 284. 2019). 16, (Dec. *1 at 143 No. N.L.R.B. 368 Casino, and Hotel All-Suites . Rio B 285. Josh Eidelson et al., . front of co-workers—or, taken to the extreme, walking out over it—is usu- it—is out over walking extreme, the to taken of co-workers—or, front like words where certainly activity,” “concerted to constitute enough ally involved. are “us” or “we” concerted] solely because it is carried out in the presence of other employees . . . and includes the use of of use the includes . and . . employees other of presence the in out carried is it because solely concerted] evidence that the complaint was “with or on the authority of other employ- other of authority on the was “with or complaint the that evidence much. don’t mean like ees,” and “we” words For job-hopping Millennials, that may not change the resistance calculus all all calculus resistance the change may not that Millennials, For job-hopping having experienced the old rule in action, is all for it. for all is action, in rule old the experienced having more like a series of jabs than a knock-out blow has transformed from a a from transformed has blow than a knock-out of jabs a series like more in complaint a workplace raising Similarly, liability. legal to a benefit legal 279. (1954). 1548-50 1547, 107 N.L.R.B. Co., & Telegraph Telephone . Pacific N.L.R.B. 110 Co., Transit Rapid Honolulu (1972); 696 695, 280. N.L.R.B. 195 Inc., Polytech 1806, . 1809-11 (describing an “arrogationof the [employer’s] rightdetermineto their schedulesand of work”). hours . 281. 2019). 25, (Jul. *1 at 24 No. 282. N.L.R.B. 368 Inc., Stores . Walmart 283. Alstate Maintenance . LLC,367 N.L.R.B. No. 68at *2, *9 (Jan.11, 2019) (“[Activity isnot law reasons for their existence, but I argue there are employment law rea- law employment are there argue I but existence, their for reasons law is a main—for get attention strikes That short expansion. their sons for on how “attention” is focus my but tactic, of the sole—virtue the detractors, per- a strike’s build to it use activists How term. a technical has become the about more much says capacity or disruptive electoral, narrative, ceived Finally, a headline. of absence, or presence, the than ascendance tactic’s cultures. solidarity build they because strikes liked long have organizers engine. important equally an is culture Millennial time-limited, even a to right attack. Traditionally, the fact that short strikes exert little economic or ad- or economic little exert strikes short that fact the Traditionally, attack. as haven, safe a legal of somewhat as functioned has pressures ministrative that “harass acts require to tended have strikes “intermittent” unprotected confusion” of state a into company the an employer cannot easily dock pay or hire replacements. or hire dock pay easily cannot an employer employers fire workers for using company email to organize. to email company using for fire workers employers has newly emphasized that what really matters is the bare existence of a a of bare existence the is matters what really that emphasized has newly goal.” same the of support in strikes of a series use “to plan urged-the-u-s-to-limit-protection-for-activist-workers [https://perma.cc/GBC2-PZ3G]. [https://perma.cc/GBC2-PZ3G]. urged-the-u-s-to-limit-protection-for-activist-workers 7 might section that suggested has Circuit Second protests—the way all, their on after are, 286. language strikes intemperate door—short using the out strikers imagine to hard not is it while example, For . 42394-ckt_95-1 Sheet No. 55 Side A 06/12/2020 13:18:38 A 06/12/2020 55 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 55 Side B 06/12/2020 13:18:38 , ORG the the . 288 OMPANY C AST OWORKER , F , C and employee champi- and employee [Vol 95:1 [Vol 287 To: Employers around the the world around Employers To: , https://home.coworker.org [https://perma.cc/5GGT- , https://home.coworker.org ORG . OWORKER CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT ) 6/10/2020 ) 12:03 PM ELETE D Meet the Google engineer getting its workers ready to strike to ready workers its getting engineer Google the Meet OT N O 3(D SWALT V 102 102 4O 287.. Coworker.org uses online petitions to aid employees in “launching and joining campaigns campaigns joining and “launching in employees aid to petitions online uses 287.. Coworker.org around issues large and small.” C of comingto work” amid the COVID-19 pandemic. (Dec. 3, 2018), https://www.fastcompany.com/90275462/meet-the-google-engineer-getting-its-workers- “never protect[] an employee who uses obscenities in the presence of customers, even when discussing discussing when even customers, of presence the in obscenities uses who employee an protect[] “never employment issues.” NLRB v. Starbucks Co., 679 F.3d 70, 80 (2d Cir. 2012). that much. And perhaps the 2020 election will flip the Presidency, the the the Presidency, flip will election 2020 the perhaps And much. that not. Maybe ever. than more strikes short protecting the law, Board, and vital most the of three surfaces uncertainty such of existence very the Yet, $15, for Uber: Fight and Google, McDonald’s, at examples the of features need will workers RDU. That is, Change, and for Real Google Walkout like unions established With what. matter no strikes short navigating help Coworker.org, like non-profits innovative SEIU, but. anything be could future their but short, be may strikes https://www.coworker.org/petitions/global-retail-worker-sick-out [https://perma.cc/C8M8-2AHP] (last XH82] (last visited2, Apr.2020). Whole Foods workers,example, for recently sought support a for instead self-quarantine or isolate who workers all for leave “paid demanding out” “sick 2020 31, March ons like Liz Fong-Jones supporting, seeding, and funding the efforts, the and funding seeding, supporting, Fong-Jones Liz ons like 288. . Sean Captain, Captain, Sean visited Apr.2020). 2, . 288. ready-to-strike [https://perma.cc/YVV2-WHEW]. [https://perma.cc/YVV2-WHEW]. ready-to-strike 42394-ckt_95-1 Sheet No. 55 Side B 06/12/2020 13:18:38 B 06/12/2020 55 Side Sheet No. 42394-ckt_95-1