In Germany, there are certain kinds of questions that are not permissible on an employment questionnaire, for example asking whether a candidate is pregnant or plans on having children, union affiliation, etc. However, these questions are often included in the questionnaire and not answering them would provide sufficient signal to the employer and the only remedy would be to sue the employer. So it's explictly permitted to lie in the answer, rendering the questions useless.

I expect a similar line of reasoning applying to this case: The question is about a protected, legal activity which is nonetheless undesirable for certain employers. Asking the question and requiring a truthful answer would undermine the protected, legal activity. Hence an effective remedy is explicitly allowing to lie in the response.

It renders the questions useless against experienced candidates, but not against naive or ignorant ones. So it still has value to employers.

The best remedy to stop such things is a statutory ‘bounty’ for such activity - like the $2500 penalty for California employers for attempting to scare employees with unenforceable non-competes.

> "there are certain kinds of questions that are not permissible on an employment questionnaire" .. "these questions are often included in the questionnaire".

I don't follow. It's not permissible but these companies just blatantly ignore the law and ask it anyways? Or it is permissible?

Those companies ignore the law - knowing that a candidate could sue, but then they would remove the canditate from the pool for any unrelated reason. A union could sue on behalf of a candidate, but until the case is resolved, the questionnaire still stands. Allowing candidates to just fill in the expected answer, truthful or not, is an effective remedy - it renders the question useless as a signal for the employer.

In most of Europe there is no notion of punitive damages in a law suit. That means if you sue that company they will fix the questionnaire with no other consequences. 3 months later they can put it back, also without consequences. Suing them can be costly, so most people will not bother. There is zero reward for doing it, as a candidate you waste time and money with no net return. All negatives and no positives.

So with very little risk, they do it.

It's not allowed, but you'd have to sue if you uncover one such questionnaire, which is a hassle.

So instead, lying on your answer is not sue-able. Which makes including such questions ineffective.

Presumably they ignore the law.

Consider the alternative where employers can fire you for lying about your employment history. Once you’ve done some union organizing, you’d be potentially unhireable.

ETA: Here's the relevant part of the judicial decision in this case:

> None of these employees [who were fired for lying and used to claim precedent in this case] are an appropriate comparator for McClure, who was never accused of stealing, violating traffic laws, or other criminal conduct. And, even if Respondent could show that the other employees were fired just for lying, and not for the underlying serious misconduct, Respondent could not use that to justify firing McClure because they were all accused of lying about conduct that Respondent could lawfully consider in hiring or firing them. In contrast, McClure lied about his history of working for union employers. Because Respondent could not refuse to hire McClure because of his union background, his lie about working for Deem can’t be used to justify firing him.

> I'm curious what the logic is to justify lying about employment history in order to salt a union.

Being from outside the US, I'd never heard this term before, and actually in my country it's rare that you join a company and aren't given all the documentation by HR about what unions you can join on the first day.

But anyway, when I googled this term, from the wikipedia article:

> The tactic is often discussed in the United States because under US law unions may be prohibited from talking with workers in the workplace and salting is one of the few legal strategies that allow union organizers to talk with workers.

It'd seem them that at least one reason why they might explicitly protect the right for union members to lie about their employment history when trying to join a company for the explicit reason of salting is that they would also be / have been an employee of a union, and disclosing that could well get them deselected from consideration for the role.

Presumably the company will still be responsible for their own due diligence in checking that the potential hire had all the necessary qualifications to legally carry out the work, and might well discover the lie in that process. Presumably they could then also terminate the employee for that reason at that point because they couldn't actually legally carry out the job duties, but equally I'd imagine if they uncovered a lie which could be shown (presumably in court) to be for the purpose of salting, but they were otherwise legally able to perform the work, then the company couldn't fire them.

The US tries to thread the needle between being "pro management" and "pro labor".

Historically, the bargain that has been struck is that current employees have substantial protections around union organizing.

However, outside unions have limited rights to directly solicit employees.

That's at the federal level. At the state level, additional pro-union rights may layer on top of that (e.g. in the northeast) or not (e.g. in the southeast).

Additionally, since you mentioned Germany, most US workers do not have a seat at the management table, in contrast to how I believe German companies are typically organized?

> in my country it's rare that you join a company and aren't given all the documentation by HR about what unions you can join on the first day.

We have companies actively looking for an employee to represent the union. Few want the responsibilities. (hours are paid, activities take priority in the schedule) I imagine they most often end up with someone who cares about the company.

Here’s a case where calling the boss names is protected converted activity.

https://www.nlrbedge.com/p/wall-street-journal-is-mad-at-wel...

"In 1979, the NLRB issued its Atlantic Steel decision, which established the test for determining when an employee’s otherwise protected speech towards management becomes too extreme to remain protected. This standard considered:

(1) the place of the discussion

(2) the subject matter of the discussion

(3) the nature of the employee’s outburst

(4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice."

You should probably have added this for nuance, so people don't misunderstand you and get the idea that name calling per se is protected.

"You fucking asshole... for prohibiting discussions of union organizing."

IANAL, but as far as I know, the line is "intent", and courts of law are empowered to infer intent from actions.

> things that could get someone fired in completely union-unrelated situations, are actually protected if done in service of unionization?

If you preferentially fire union organizers and preferentially ignore the infractions of non-union-members, then yes.