According to the Crimson, Harvard has circulated an email advising departments seeking to hire spring teaching fellows (and other student workers) to include certain language in job postings and offer letters. The Crimson reports that the email “recommends departments include a provision in postings and offer letters that conditions teaching fellow positions on whether candidates can commit to a start date or not.” The email goes on to state that “[i]f the candidate says that they can commit to that date, then we can assume that they are not honoring the strike and will report to work. If they can’t make that commitment, then the hiring unit would not hire the candidate.” Finally, the Crimson reports that the email stated that it would be permissible to reference the strike by writing: “Due to the current HGSU-UAW labor strike, and since this offered position is a bargaining unit position, we need to know whether you will commit to starting employment on that date if the strike is continuing.”
For those unfamiliar with labor law and the law of strikes in particular, this email may seem unremarkable – even commonsensical. It may appear that an employer is simply seeking to establish whether prospective employees are available to work on the date that a job will begin. And, in ordinary circumstances, such an inquiry would raise no flags. In the context of a strike, however, such an inquiry is highly problematic and should not be made. The harm, from this perspective, is obvious: it extracts a promise from job applicants not to participate in the strike.
The right to strike was written into federal law in 1935 because legislators had come to believe that a just society requires it. If workers cannot act collectively to advance their interests, they cannot meaningfully advance their interests at all. The University’s desire to ensure that spring classes begin as scheduled is understandable. But if it wants a commitment not to strike, it has a time-tested option under federal labor law: it can negotiate with the elected representative of its workers for a no-strike clause in a collective bargaining agreement.
As is often true, we can find no NLRB decision that directly resolves the legality of the University’s email. And it is an unfortunate feature of living during the Trump administration that workers’ rights are more vulnerable than they have been for almost a century. Indeed, the Trump NLRB is itching to decide that student workers are not even employees entitled to labor law’s protection – a proposition that makes no legal sense and that stands to do real damage to the strength of the labor movement generally. But the fact that the Trump NLRB likely would not rule for the students does not change the basic principle here. The right to strike is a core federal legal right that is vital to our democracy. No employer – and certainly not Harvard University – should condition employment on its relinquishment.