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Over on main meta, on the post containing a statement from Stack Overflow about the current moderator action, there was a brief edit war over the inclusion (or not) of the word "strike" in the title. An SO staff member said :

While we recognize that the community is referring to this event as a "strike", that term has a specific legal meaning and we have been advised not to refer to it as such. For that reason, we ask that future editors of this post do not edit it to use that language.

What 'specific legal meaning' might be being referred to here? Why might a corporation want the act of refusing to perform duties to not be referred to as a strike? Is it relevant that those withholding effort are unpaid volunteers?

I'm guessing at the jurisdiction and hence the appropriate tag.

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    related on the topic of mods not being employees: Is Stack Exchange in violation of New York labor law, in using volunteer moderators?
    – starball
    Commented Jun 7, 2023 at 17:58
  • We can speculate as to the reason why they are asking this, and I think it's nigh impossible to meaningfully answer without including that consideration; but I can't help but note the same lack of concrete substantiation that's also found (according to claims I read from the opposing side) in the reason for the so-called strike itself.
    – Flater
    Commented Jun 8, 2023 at 4:17

2 Answers 2

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Under US law, unions and employees enjoy a set of protections codified under the National Labor Relations Act. Some of those rights specifically pertain to strikes, and in particular, employees engaged in "lawful" strikes cannot be fired merely for striking (but they can be replaced).

Stack Exchange, Inc. takes the position that moderators are not employees and are not subject to the NLRA. Their reluctance to use the word "strike" likely stems from this position. If the moderation strike were a "strike" within the meaning of the NLRA, that would imply a large and complex set of restrictions on how Stack Exchange may respond to the strike. It would also suggest that moderators, as employees, have a right to discuss their "workplace conditions" with each other or the public - which might be construed to include some or all of the moderation policies that Stack Exchange has distributed in private (but I'm somewhat doubtful of that).

Of course, it would also raise serious problems under the Fair Labor Standards Act (moderators are unpaid and the FLSA sets a minimum wage), but that is a different law, and it is theoretically possible that a court would rule that moderators are employees for NLRA purposes but not for FLSA purposes. I have never heard of such a ruling actually happening, and it is far more likely that moderators are not employees for either purpose. Still, it might be unwise to refer to the strike as a "strike," just in case the issue gets litigated.

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    "Still, it might be unwise to refer to the strike as a "strike," just in case the issue gets litigated." Unwise for which side, or both?
    – Laurel
    Commented Jun 8, 2023 at 4:05
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    @Laurel: Mostly for Stack Exchange. There's not much risk to moderators, since (as far as I can tell) the NLRA specifies no penalties for an "unlawful" strike other than the loss of the protections described at the linked site. So an "unlawful" strike is not materially different from an "action that isn't a strike at all."
    – Kevin
    Commented Jun 8, 2023 at 4:25
  • @Laurel It depends on the objective. If the goal is to shut down SE, then going into litigation with as much recognized legal rights as possible will end up costing SE a lot of money to fight it.
    – Nelson
    Commented Jun 8, 2023 at 5:06
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    The vast bulk of Mods are volunteers - does that have any bearing?
    – Criggie
    Commented Jun 9, 2023 at 3:34
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    @Criggie: Of course. That fact is the reason I'm reluctant to characterize mods as employees. Nothing in this answer applies to paid Stack Exchange employees (who, to the best of my understanding, are not participating in the strike).
    – Kevin
    Commented Jun 9, 2023 at 16:44
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The term has potentially as many specific legal meanings as there are statutes that use the word. One example is title 29 of the United States Code, chapter 7 (Labor-Management Relations), which defines "strike" thus:

The term “strike” includes any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slowdown or other concerted interruption of operations by employees.

Which is not terribly helpful. Also unhelpful is the definition of "employee":

The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.

In fact, it is not usually necessary to observe statutory definitions of terms when discussing something that is outside the scope of the statute in question. Lawyers will nonetheless counsel their clients to avoid doing so because they do not want the use of the word to be taken as an implied admission of some circumstance that might weaken the client's case.

I don't suppose the striking moderators are actually employees of Stack Exchange, Inc., so I cannot imagine how using the word "strike" could cause trouble. But that doesn't matter a whole lot. If they don't want to use the word strike, they can refrain from using it. If they're trying to spin the situation by hiding behind purported legal advice, the only way you're going to prove that is with direct evidence. Even if the legal reasoning is bogus, it could just be that they have a bad lawyer, or just an overcautious one. Maybe they are worried that SE using "strike" would trigger a requirement to pay moderators minimum wage. Or about something else. Or maybe it's just spin.

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  • Allegedly, SE was advised not to use the word. (By who—a lawyer, or someone like me who once reshelved books for a law library?)
    – WGroleau
    Commented Jun 12, 2023 at 14:27

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