The Case for Virtual Picket Lines

Coverage of the recent union election by Amazon warehouse workers has often referred to “national attention” around the “high-profile” event, for which “the world” and “we” have breathlessly awaited the outcome. The implied “we” are mostly news media, politicians, celebrities, and a pro-labor contingent of avid tweeters. It’s my job to relay Amazon workers’ reports of dehumanizing graveyard shifts and paranoia-inducing surveillance. But what about everyone else? People who haven’t intentionally sought out this news might have no idea about what’s going on at Amazon—information that might influence their buying decisions.

This is why we have picket lines. Workers can stand in front of a store with signs to inform you that their employer is putting them at undue risk of, say, contracting a life-threatening disease, which might impact consumers’ decisions to spend money at the business. They can work if consumers join in a consumer boycott; see the 1960s Delano Grape Strike, in which Mexican and Filipino farmworkers won a major victory, building the United Farm Workers (UFW), with the help of an international boycott of table grapes. Polling suggests that a significant chunk of Americans might be willing to join such a boycott now. Last year, a Gallup survey found that 65% of over 1,000 randomly selected American adults approve of unions.

Since people can’t protest at an e-commerce site, however, some labor reform advocates have floated the idea of a virtual picket line. This comes up in the Clean Slate Agenda, a report from Harvard Law School, produced by over 70 researchers, labor professionals, tech workers; they suggest lawmakers compel a company to post a notice on its website that informs consumers of a labor dispute and forces them to actively decide to cross the picket line. For example, say someone is attempting to book a room at a Big Name Hotel Chain where workers are on strike. Upon reaching Big Name Hotel Chain’s site or a Big Name Hotel Chain listing on Expedia, the company would be required to display a pop-up window informing the customer of the strike and asking whether the customer still wants to proceed.

This might require rethinking the shape of business. We’ve learned from outdated regulation that, often, no true equivalent to the decaying brick-and-mortar model exists. There’s no digital line between the sidewalk and the glass front, no local franchise on a corporate homepage, and rarely a sole business involved in a transaction.

We asked Benjamin Sachs, a co-founder of the Clean Slate for Worker Power project, to elaborate. Sachs pointed to the existing legal framework and—a great idea—an easily achievable self-install that wouldn’t require any political battle at all.

Gizmodo: What is a virtual picket line? What might it look like, and why do you feel that it’s essential?

Benjamin Sachs: Let me start with why it’s essential. In the brick-and-mortar economy, if workers have a dispute with their employer, the way they publicize that dispute to consumers often involves picketing or leafleting at the premises where the workers are employed. If you imagine workers at a retail establishment, you can picture a picket line outside the store. This apprises consumers of the labor dispute. It’s up to the consumer to decide whether they still want to shop at the retail outlet.

The problem posed by the move to the digital economy is that there are no brick-and-mortar stores at which workers can publicize the fact of their labor dispute. And so even though there are lots of labor disputes in the digital economy, consumers often don’t know about the dispute because there’s no picket line that they have to cross.

This is a real issue. It includes companies that operate entirely, or nearly entirely, online, such as Amazon, as well as firms that operate both in the real world and online.

One potential way of addressing this problem is to allow for or require what our Clean Slate project called virtual picket lines.

When a consumer goes to purchase a product or book a reservation at a business with whom employees have a labor dispute, the consumer is made aware of the labor dispute and given the choice to shop or not to shop. How this is done can vary, but that’s the essence of it.

Gizmodo: To play devil’s advocate, some people might complain that the real-world analog for this might be more like picketing in the aisles or the cash register, rather than in front of a business, because you’re right in front of the point of sale. Or maybe there is no perfect real-world parallel. Do you think labor law needs to change in order to account for digital spaces?

Sachs: A ton of details here are important, but I suppose the notice and decision point would be when a consumer first opens a website. So you go to Walmart.com, and the first thing you see is a pop-up box that notifies you of the labor dispute and asks you if you wish to cross the picket line or not.

So let’s imagine workers are protesting wages and working conditions outside of Walmart. If you want to shop at Walmart, you have to make a decision. Do I cross the picket line or not? It seems to me that a digital picket line is a pretty close analog to that.

I should say that I’m a labor lawyer, not a web designer. But it seems to me that there’s a broad menu of possibilities that we could pursue. One would be a mandate that any employer with a digital commerce platform publicize a labor dispute and give consumers the right to opt-out of pursuing a purchase.

Another possibility could involve, first, the Department of Labor collecting data on labor disputes and then, second, making a browser extension available to consumers. If you install the extension, then when you visit an e-commerce site where there was a labor dispute, you would get a pop-up window apprising you of that labor dispute and giving you the right to pursue or not pursue your purchase based on it.

Gizmodo: That’s interesting.

Sachs: One of one of the virtues of the first approach is that all consumers would become aware of the labor dispute. The browser extension would require consumers to affirmatively opt-in, which is not the case in the brick-and-mortar world.

Gizmodo: Do you think that this might only work in the case of sectoral bargaining? I ask because Amazon is not currently in a labor dispute with all workers, and Amazon.com represents a wide variety of services for multiple industries. Putting a notice on their entire business is different from crossing a picket line at one warehouse.

Sachs: So, there’s a technical question and a labor relations question. Let’s say there are workers picketing a Walmart in Fort Worth, Texas. The pop-up window could be restricted to consumers who would ordinarily shop at the Fort Worth store. Another way to do it would be to have the pop-up window appear for any consumer at any Walmart, anywhere, and it could say that workers at the Fort Worth store are on strike over the following conditions.

I don’t see a legal problem with either setup, but the first approach [that] would translate to Amazon is a notch more complicated. If warehouse workers are picketing in a particular warehouse, consumers are unlikely to know which warehouse their product would be routed through. So the narrower approach might require more sophisticated technical design. The broader approach, under which all Amazon customers learn about all Amazon disputes, is far simpler to design and has the virtue of getting more information to more consumers.

And consumers might well prefer the second, broader option. Think about the Walmart example. Consumers who are shopping at Walmart in upstate New York might very well be interested to know that workers in Fort Worth, Texas, have a dispute with Walmart. Some of those upstate New York customers might want to base their shopping decisions on what’s going on elsewhere in the same company.

Gizmodo: Can you think of a precedent where notices are mandated by law? I’m thinking of the California Consumer Privacy Act, for example.

Sachs: There are a million ways in which law imposes notice requirements on employers. But it is fair to say the Supreme Court seems increasingly attuned to claims of what is known as “compelled speech.” “Compelled speech” refers to a First Amendment doctrine that prohibits the government, in certain circumstances, from requiring private parties either to speak or to subsidize speech with which they disagree. The Supreme Court has relied on this doctrine in the labor contest to hold that, in the public sector, employees cannot be required to pay union dues.

I don’t believe there would be a compelled speech problem with mandating that companies provide access to a virtual picket line, but the Supreme Court might see it differently. There’s no problem with a browser extension because that leaves it up to the consumer to choose whether or not to install the extension.