July 18, 2022

Employers Get Active to Protect Captive Audience Speech

Imagine you hear a workplace rumor that some of your employees are considering forming or joining a union.  You have an open door policy, pay market-competitive wages, and think they do not need to pay someone any part of their well-earned money to be their advocate.  You would like to have a meeting so you can hear your employees’ concerns and share your opinion. Would that meeting “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech?”  That is what the National Labor Relations Board (NLRB) General Counsel Janet Abruzzo believes.

Under Section 8 of the National Labor Relations Act (NLRA), an employer may not “interfere, restrain, or coerce” non-supervisory employees in the exercise of their Section 7 rights. Section 7 rights include the right of non-supervisory employees to “join, form or assist” a union or engage in other protected, concerted activity for their mutual aid or protection.  Simply said, you cannot say or do something that would prevent or dissuade employees from talking about joining a union, discussing their wages with one another, and much more. Today, these meetings, known as Captive Audience meetings, are permitted so long as the employer uses persuasion but not coercion to dissuade employees from forming or joining a union.

On April 22, 2022, GC Abruzzo issued a memo, “The Right to Refrain from Captive Audience and Other Mandatory Meetings.”  The name “Captive Audience” originates from meetings like the one she describes above. Kind of like, “You’re gonna sit there, listen, and you won’t leave until I tell you to leave…or else!”

In her memo, she writes “I plan to urge the Board to reconsider such precedent and find mandatory meetings of this sort unlawful.”

In response, on July 18th, a group of businesses (temporary staffing firms) filed suit alleging the GC’s “unlawful attempt to silence employer speech in violation of the First Amendment.”

Stay tuned.  If you want to talk to your non-supervisory employees about why you think they do not need to join a union, talk to your company’s legal counsel. While you’re at it, ask about other pitfalls to avoid, like your dress code, no solicitation policy, telling employees that they are not to discuss their wages with one another, and more.

In the interim.  Could your managers and supervisors use a refresher on labor law basics? Check out the October 2021 webcast, “NLRA in Today’s Workplace.” $25 pp. Click here to ask about group rates.