Anticipatory Retaliation, Threats, and the Silencing of the Brown Collar WorkforceAmerican Business Law Journal
Abstract“Anticipatory retaliation” refers to employers’ preemptive attempts to silence potential future worker opposition to substandard or illegal employment practices. Especially in “brown collar” workplaces that primarily employ low-wage, often undocumented, immigrants, anticipatory, retaliatory threats may be used as a form of preemptive labor control, a way to deter workers from ever complaining, filing suit, or otherwise exercising “voice” on the job. Yet employment and labor laws provide little to no remedy for anticipatory, retaliatory threats. This is problematic, as employment and labor laws rely to a great extent on workers themselves, rather than government investigators, to make claims about workplace problems. If workers are preemptively silenced by threats, then the substantive rights guaranteed by employment and labor statutes may go largely unenforced. This is particularly problematic with respect to brown collar workers, whose immigration status, reliance on their jobs, and limited English skills may already create significant barriers to workplace claims-making. Because these workers may be especially likely to be silenced, they may also be especially likely to be exploited in other ways: harassed and discriminated against, paid less than the minimum wage, and subjected to hazardous working conditions. This Article explores four shortcomings of federal employment and labor laws, and their interpretation by the courts and the National Labor Relations Board, that leave brown collar workers without protection against anticipatory, retaliatory threats. It concludes by considering broader implications for the substantive conditions of work in brown collar workplaces and making suggestions for statutory and interpretive reform.
Citation InformationCharlotte S. Alexander, Anticipatory Retaliation, Threats, and the Silencing of the Brown Collar Workforce, 50 Am. Bus. L.J. 779 (2013).