Dave Portnoy: Lawbreaker Or Misunderstood Entrepreneur?

In 2019, Dave Portnoy, the founder of Barstool Sports, was accused of breaking the law when he tweeted a threat to fire on the spot any employee who sought advice on forming a union. U.S. Representative Alexandria Ocasio-Cortez responded to Portnoy, stating that he was likely breaking the law under the National Labor Relations Act (NLRA). The NLRA protects employees' rights to self-organization and collective bargaining, and prohibits employers from engaging in unfair labor practices, including interfering with the formation of labor organizations. Portnoy later agreed to an informal settlement with the National Labor Relations Board, in which he did not admit guilt but deleted his anti-union tweets.

Did Dave Portnoy's tweet about firing employees who unionize break the law?

In 2019, Dave Portnoy, the founder and president of Barstool Sports, tweeted a threat to fire "on the spot" any employee who sought advice on forming a union. This tweet was in response to a former reporter for Business Insider, Rafi Letzter, who had offered via Twitter to advise any Barstool employees interested in unionizing.

U.S. Representative Alexandria Ocasio-Cortez weighed in on the controversy, tweeting:

> "If you're a boss tweeting firing threats to employees trying to unionize, you are likely breaking the law & can be sued, in your own words, 'on the spot.' ALL workers in the US have the protected freedom to organize for better conditions."

Indeed, under the National Labor Relations Act (NLRA), employees have the right to self-organization, to form, join, or assist labor organizations, and to bargain collectively. The NLRA prohibits employers from engaging in unfair labor practices, including "dominating or interfering with the formation or administration of any labor organization."

While the courts have ruled on unfair labor practices concerning social media use by employees, they are yet to address the issue of employers' use of social media in this context. However, the court's broad definition of interference under the NRLA, which includes coercion, supports Ocasio-Cortez's argument that Portnoy's tweet was a violation of the law.

In response to the controversy, Portnoy eventually agreed to an informal settlement with the National Labor Relations Board, in which he deleted his anti-union tweets without admitting guilt.

Did Portnoy's tweet amount to interference under the NRLA?

In 2019, Dave Portnoy, the founder and owner of Barstool Sports, tweeted a threat to fire "on the spot" any employee who sought advice on forming a union. In response, Alexandria Ocasio-Cortez (AOC) tweeted that Portnoy was "likely breaking the law" under the National Labor Relations Act (NLRA).

The NLRA gives employees the right to self-organization and to form, join, or assist labor organizations. It prohibits employers from engaging in unfair labor practices, including "dominating or interfering with the formation or administration of any labor organization." Portnoy's tweet, in which he threatened to fire employees for engaging in unionization activities, could be construed as a form of coercion or interference with employees' right to organize.

While there is no dispute that Portnoy is subject to the NLRA, the courts have yet to rule on a case involving an employer's use of social media in this context. However, the court's expansive definition of interference under the NRLA, which includes coercion, supports AOC's argument that Portnoy's tweet violated the NRLA.

Portnoy later agreed to an informal settlement with the National Labor Relations Board, in which he did not admit guilt but deleted his anti-union tweets.

Did Portnoy's tweet constitute coercion?

In 2019, Dave Portnoy, the founder of Barstool Sports, tweeted a threat to fire "on the spot" any employee at his blogging company who sought advice on forming a union. This prompted the New York State Department of Labor to release a statement saying, "We say no way, no how to intimidation, threats and union busting. It is illegal to take any unfavorable action—including termination—against employees for union-related activities under the National Labor Relations Act."

U.S. Representative Alexandria Ocasio-Cortez also weighed in on the issue, tweeting, "If you're a boss tweeting firing threats to employees trying to unionize, you are likely breaking the law & can be sued, in your own words, 'on the spot.' ALL workers in the US have the protected freedom to organize for better conditions."

The National Labor Relations Act (NLRA) prohibits employers from engaging in unfair labor practices, which include "dominating or interfering with the formation or administration of any labor organization." The NLRA applies to all private employers, so there is no dispute that Portnoy is subject to the act.

While courts have ruled on unfair labor practices concerning social media use, they have only done so in the context of an employee's usage of social media, not an employer's. However, the court's expansive definition of interference under the NRLA, which includes coercion as well as mere allurements, supports Ocasio-Cortez's argument that Portnoy's tweet was a violation of the NRLA.

Portnoy later agreed to an informal settlement with the National Labor Relations Board, in which he did not admit guilt but deleted his anti-union tweets.

Did Portnoy's tweet violate employees' rights to freedom of association?

In 2019, Dave Portnoy, the founder of Barstool Sports, tweeted a threat to fire "on the spot" any employee who sought advice on forming a union. This sparked a debate about whether Portnoy's tweet violated his employees' rights to freedom of association.

Under the National Labor Relations Act (NLRA), employees have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively, and to engage in other concerted activities for mutual aid or protection. The NLRA prohibits employers from engaging in unfair labor practices, including "dominating or interfering with the formation or administration of any labor organization." This act applies to all private employers, so there is no question that Portnoy is subject to the NLRA.

While courts have ruled on unfair labor practices concerning social media use by employees, Portnoy's use of social media as an employer presents a novel issue that courts have yet to address directly. However, the court's expansive definition of interference under the NLRA, which includes coercion and allurements, supports the argument that Portnoy's tweet violated the NLRA.

In response to the controversy, the New York State Department of Labor released a statement saying, "We say no way, no how to intimidation, threats, and union busting... New York is a proud union state." U.S. Representative Alexandria Ocasio-Cortez also weighed in, tweeting that Portnoy was "likely breaking the law" and that "ALL workers in the US have the protected freedom to organize for better conditions."

To avoid legal repercussions, Portnoy later agreed to an informal settlement with the National Labor Relations Board, in which he deleted his anti-union tweets without admitting guilt.

In conclusion, while the courts have not specifically ruled on the issue of employers' social media use in this context, the available evidence suggests that Portnoy's tweet likely violated his employees' rights to freedom of association under the NLRA.

Did Portnoy's tweet violate employees' rights to collective bargaining?

In 2019, Dave Portnoy, the founder of Barstool Sports, tweeted a threat to fire "on the spot" any employee at his blogging company who sought advice on forming a union. In response, the New York State Department of Labor released a statement saying:

> We say no way, no how to intimidation, threats and union busting. It is illegal to take any unfavorable action—including termination—against employees for union-related activities under the National Labor Relations Act. New York is a proud union state.

U.S. Representative Alexandria Ocasio Cortez also weighed in, tweeting:

> If you're a boss tweeting firing threats to employees trying to unionize, you are likely breaking the law & can be sued, in your words, 'on the spot.' ALL workers in the US have the protected freedom to organize for better conditions.

Portnoy later agreed to an informal settlement with the National Labor Relations Board (NLRB), in which he did not admit guilt but deleted his anti-union tweets. The settlement also required him to remove any anti-union material created by Barstool Sports and to notify employees of their right to unionize through email and physical postings.

While Portnoy's tweets did not directly violate his employees' rights to collective bargaining, they were perceived as a threat and an attempt at union busting, which is illegal under the National Labor Relations Act.

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