NLRB Bans Captive Audience Meetings
Since 1948, federal labor law permitted employers to require employees to attend meetings during which the employer may express opinions on unionization. So long as these communications did not contain unlawful threats or promises and were not otherwise coercive, captive audience meetings were lawful. No more! On November 13, 2024, the National Labor Relations Board (Board) issued a decision in Amazon.com Services LLC that banned captive audience meetings, overturning nearly 80 years of precedent.
The Board held captive audience meetings are unlawful for a number of reasons. First, the federal law on unionization permits employees to either participate or not participate in union organizing activities. The NLRB stated that by making the meetings mandatory, the employer was in effect, interfering with an employee’s statutory right to choose whether, when, and how to participate in debate concerning union representation. Second, the Board held that these meetings allow management to observe the attendee’s reactions to what is being said, which, in effect, allows management to unlawfully surveil employees in the exercise of their organizing rights. Finally, the NLRB opined that these meetings are “inherently coercive” because they highlight the economic imbalance an employer has over its employees, and this tends to prevent employees from acting freely in exercising their rights.
The decision permits employers to hold meetings about unionization if employees are given reasonable advance notice that: (1) the employer intends to express its views on unionization at a meeting where attendance is voluntary; (2) employees who chose not to attend will not be subject to discipline or other adverse consequences; and (3) the employer won’t keep any attendance records including who leaves the meeting early. Employers may wish to consider putting these notices in writing and reiterating these statements at the meeting and in any meeting materials as evidence of compliance.
This decision will no doubt be appealed, and the Trump administration will presumably seek to overturn it. Until then, employers should not hold captive audience meetings (unless they hope to become the Trump administration’s test case) or be aware that any captive audience meeting, even if voluntary and in compliance with the rules discussed above, will likely result in unfair labor practice charges.
Employers must also contend with a growing list of state laws, to include California, New York, and Illinois, that also purport to ban captive audience meetings. However, employers can expect challenges to these state laws based on the argument that they are preempted by the National Labor Relations Act, which generally prohibits state and local governments from regulating activities that are protected or prohibited by the NLRA.
In order to navigate this new legal landscape, employers should consult with labor counsel to ensure they do not find themselves embroiled in unexpected litigation.
As always, if you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or visit us online at www.brgslaw.com .
Sincerely,