BLIND LEADING THE BLIND: A CASE FOR A LEGALLY CONSCIOUS, ANONYMOUS EMPLOYMENT APP.

• Author: Kuhs, Marcus D.

1. Introduction

   Nearly every jurisdiction in the United States recognizes the at-will employment doctrine that signifies that employees may be terminated for any reason that does not violate statutory protections or public policy. (1) Some state legislatures have outlawed mandatory pay secrecy in order to broaden statutory protections for workers. (2) Massachusetts California, Colorado, and Illinois are some of the jurisdictions that have explicitly codified protections for employees who discuss their salaries and benefits with colleagues and third parties. (3)

   Although state legislatures have only recently recognized pay transparency laws, on a federal level, such protections, to some degree, have long been in force. (4) Namely, the National Labor Relations Act of 1935 dictates that employers may not inhibit employees from engaging in concerted labor activities such as discussing salaries or wages with fellow employees. (5) Still, many employers either discourage their employees from discussing their compensation or require them to sign non-disclosure agreements expressly prohibiting them from discussing their salary with other employees and third parties. (6) Although it is robust, the Act does not and cannot address every instance of employer retaliation for discussing employee pay and benefits--leaving employees at risk of losing their jobs for mere inquiries into the compensation of their peers. (7)

   Awkwardness in discussing salary, employer resistance to employees discussing their respective salary, and lack of absolute protection for all employees discussing their salaries regardless of whether the discussion is in furtherance of mutual aid or benefit remain obstacles to achieving pay transparency. (8) Furthermore, since unionization efforts have declined, American workers have seen the largest pay disparity between employee and employer ever. (9) Blind, a South Korea based app that assigns randomized, anonymous, encrypted identification numbers to participating employees, allows workers to discuss subjects such as salary, fairness in the workplace, and company policies, and can help remedy these issues. (10) While Blind offers a way to protect workers from workplace retaliation, there is a noticeable lack of competition and vast amount of speculation as to whether the app is truly anonymous and safe for employees to use. (11)

   This Note will examine how Blind synergizes with existing state and federal legislative infrastructure protecting pay transparency, concerted activity, and workers from discrimination. To achieve this end, this Note will contextualize unionization in America, the concept of at-will employment, and equal pay initiatives and interests to underscore the need for emerging tools and strategies to aid American workers in achieving an equitable workplace. Finally, this Note aims to evaluate Blind as a potential solution and intermediary for employee protections and advocate for either legally conscious renovations to Blind's platform or for another company to provide similar services that Blind does in a more legally responsible way.

2. History

   1. The National Labor Relations Act and the Union Model of Pay Transparency

      Historically, workers in the United States were not afforded labor protections until the passage of significant labor reform acts, especially the National Labor Relations Act of 1935 ("NLRA," "the Act"). (12) Section three establishes the Act's enforcing body, the National Labor Relations Board ("NLRB," "The Board") which has five board members who preside over hearings at the highest level. (13) Section seven of the Act establishes that employees have a right to engage in concerted activities. (14) Section eight of the Act establishes several unfair labor practices which employers may not engage in. (15) With limited exceptions, the NLRA does not protect government employees, but government employees enjoy pay transparency by the nature of their employment because local, state, and federal governments publish salaries so that they are searchable by the public. (16)

      Expressly enabled by the NLRA, union pay scale transparency models establish compensation within the terms of a collective bargaining agreement and remain the most easily accessible and recognizable mode of pay transparency. (17) Some private sector unions even publish their respective collective bargaining agreements-which contain salary and wage schedules-online with the United States Department of Labor. (18) Public sector union employees, while not protected under the NLRA, are also able to simply search for their pay scales on the internet or request copies of their collective bargaining agreements. (19)

      It is a common misconception that the NLRA only applies to unionized employees; the Act extends protections to at-will employees as well. (20) Thus, an employee of a large retail chain, a server at a restaurant, and an office assistant at a Fortune 500 company are all typically protected under the NLRA. (21) In its essence, mandatory pay secrecy is considered an unfair labor practice under the Act. (22) However, the Act is not always effective at preventing many employers from resisting pay transparency, punishing employees who partake in acts related to pay transparency, and keeping salary and benefit information secret from inquiring employees. (23)

   2. The Rise and Fall of American Unions

      At one point in history, many Americans knew members of unions. (24) Large general unions such as the Industrial Workers of the World (IWW) and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) actively engendered support for worker protections throughout the entire twentieth-century. (25) After the passage of the Taft-Hartley Act of 1947, the federal government and state governments regained a considerable amount of power over unionized workers. (26) With the Taft-Hartley Act outlawing some of unions' most powerful strategies, external factors including economic downturns, anti-Communist sentiments, and political undertows, gravely affected union membership in the United States. (27) From the 1960s through the mid-2010s, union membership in America hit record lows annually. (28)

      The United States government has resorted to many different means to neuter unions and curtail working class movements from usurping ruling class hegemony, even if that meant resorting to using state mechanisms. (29) For example, there has been a growing sentiment from academics and politicians alike that unions who expand rights enjoyed under collective bargaining agreements to as many workers as possible inherently violates the language of antitrust legislation. (30)

   3. Ledbetter v. Goodyear Tire & Rubber Co., Inc.: Every Minute Counts for Wronged Employees

      At-will and independently contracted employees constitute the majority of the workforce in the United States, enabling employers to terminate employees for any reason at all or for those outlined in a contract for employment. (31) Generally, at-will employees especially have less awareness of their compensation in comparison to their unionized counterparts because employers tend to not provide compensation details making wage violations on the basis of discrimination more prevalent. (32)

      Title VII of the Civil Rights Act of 1964 was bolstered by the Lilly Ledbetter Fair Pay Act ("FPA") which was passed in the wake of Ledbetter v. Goodyear Rubber, Co. Inc. (33) Lilly Ledbetter brought a claim against her employer under Title VII for pay discrimination which was ultimately denied by the Supreme Court. (34) In the wake of this controversial ruling, employers were able to circumvent Title VII's narrow 180-day statute of limitations on pay discrimination claims, as the statute would start running at the first instance of pay discrimination. (35) In 2008, President Obama signed into law the FPA as a means of amending Title VII's 180-day statute of limitations by resetting the 180-day timer with each instance of pay discrimination as opposed to the first instance of pay discrimination. (36) However, the FPA does not reset the timer for every type of discrimination claim, even if the reasoning behind the discrimination is based on unfair employment practices. (37)

   4. Some State Legislators Expand Rights of At- Will Employees for Purposes of Pay Transparency and Paycheck Fairness Act

      Especially in light of the #MeToo movement and the evergrowing scrutiny of the gender gap, there is a great impetus for the legislature to codify expanded protections against pay secrecy. (38) Additionally, pay secrecy also affects nonwhite people's ability to figure out whether their wages are equivalent to their white counterparts. (39) Only seven states prohibit employers from requesting previous salary information for incoming applicants and many more cities and other municipal entities have passed ordinances prohibiting this conduct in an effort to combat the gender and race gap in the workplace. (40)

      Further yet, there is proposed legislation in Congress that would expand the same rights offered by the aforementioned state statutes to a federal level. (41) However, the bill is not expected to pass. (42) But, vulnerable populations such as women and racial minorities may have recourse if their employers enforce a pay secrecy policy--an app called "Blind." (43)

   5. Awkward Watercooler Talk: Do Employees Really Want to Talk About Their Pay Even in the Face of Inequality?

      Despite the advantages that pay transparency provides to all, workers are not entirely on-board with the idea about discussing their salary, wages, or benefits with other people; in fact, discussing any of these things is still taboo and makes large portions of America's workplace uncomfortable. (44) Perhaps employees fear that the workplace will become more tense if salaries serve as a point of social comparison. (45) However, tension could potentially be exacerbated if companies do not provide any context...