NLRB Outlaws Captive Audience Meetings

What employers should do to avoid violation

On November 13, 2024, the National Labor Relations Board (“NLRB” or “the Board”) ruled that captive audience meetings— mandatory employer-sponsored meetings attempting to dissuade employees from unionizing— are illegal under the National Labor Relations Act (“NLRA” or “the Act”). Although historically, the Board has not precluded employers from requiring employees to attend captive audience meetings, the Board overruled this precedent and concluded that captive audience meetings violate the Act. In so reasoning, the Board stated that captive audience meetings “have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 right to freely decide whether or not to unionize, including the right to decide whether, when, and how they will listen to and consider their employer’s views concerning that choice.”

In the case at issue, a group of employees who founded the Am­azon Labor Union and began organizing at two of the Respondent’s locations in New York were required to attend captive audience meetings. During these meetings, the Respondent’s agents made statements opposing union representation generally and the Union specifically. At one facility, the Respondent held meetings every 45 minutes from 9:00 am to 9:00 pm and 7:00 pm to 4:00 am. 6 days a week. Managers would personally notify employees that they were scheduled to attend, escort them to the meetings, and scan their ID badges to digitally record attendance. In its analysis of these meetings, the Board reached two conclusions: (1) captive audience meetings interfere with and coerce employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1), and (2) free-speech principles, including those embodied in Section 8(c) and the First Amendment, do not insulate employers from liability for such violations.

Importantly, the Board held that it will not broadly prohibit employers from holding voluntary workplace meetings with their employees to express the employer’s lawful views on unionization in a non-coercive manner. In fact, the Board specified three straightforward steps that employers may take to avoid violating Section 8(a)(1), stating that an employer will not be found to have violated Section 8(a)(1) if, reasonably in advance of the meeting, the employer informs employees that:

1. The employer intends to express its views on unionization at a meeting at which attendance is voluntary;

2. Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and

3. The employer will not keep records of which employees attend, fail to attend, or leave the meeting.

An employer may avail itself of this “safe harbor” by giving employees these assurances. Then, of course, the employer must also follow through on these assurances to stay on the right side of the law.

Employers should exercise caution when holding meetings relating to union representation and ensure that all such meetings are fully voluntary as described by the Board. Additionally, employers should be aware that, given the forthcoming presidential administration, a likely shift in the Board, and the fact that the Board overturned decades-old precedent, there is a possibility that this decision could be modified or overruled.