For decades, the National Labor Relations Board (“NLRB”) permitted employers to hold mandatory employee meetings during paid time wherein company representatives engage in speech concerning statutory labor rights, including captive audience meetings. But a new memo from the NLRB general counsel may make these meetings unlawful in the future.

On April 7, 2022, the NLRB general counsel issued Memorandum GC 22-04 (“GC Memo”) titled “The Right to Refrain from Captive Audience and other Mandatory Meetings.” In the memo, the general counsel asserts that prior NLRB case precedent finding such mandatory meetings lawful was wrongly decided and at odds with fundamental labor law principles.

The National Labor Relations Act (“NLRA”) grants employees the right to engage in or refrain from engaging in a wide range of protected activities at work. The NLRA makes it unlawful for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by the NLRA. The GC Memo notes that there is an inequality of bargaining power between individual employees and their employers and that employees are economically dependent on their employers. By forcing employees to attend mandatory meetings and listen to such employer speech under threat of discipline, the GC Memo argues that meetings unlawfully chill employees’ NLRA rights.

The scope of the memo is very broad. The general counsel takes issue with traditional captive audience meetings, when employees are “forced to convene on paid time.” Captive audience meetings are typically used by employers to highlight the disadvantages of unionizing during a union organizing campaign. The GC Memo appears to take the position that these meetings are unlawful, regardless of whether or not an organizing campaign exists. Further, the GC Memo also asserts that less formal situations where employees are “cornered by management while performing their job duties” are unlawful.

This new legal theory comes as employees nationwide are increasingly turning to labor organizing to obtain workplace changes from their employers. The NLRB has noted a recent 57% increase in union representation petitions and 14% increase in unfair labor practice charges (alleged NLRA violations) filed with the agency. Federal labor officials are closely scrutinizing management behavior during the resurgence of union campaigns.

It is important to note that the positions taken in the GC Memo are not yet legally binding. Any changes in NLRA precedent must be approved by the five Board Members of the NLRB, which is typically done as part of an appeal of an Administrative Law Judge’s decision. The extent to which the Board Members agree with the arguments in the GC Memo will not be known until the general counsel prosecutes a case against an employer alleging that a mandatory meeting violated the NLRA, an Administrative Law Judge issues a decision under existing precedent, the general counsel appeals that decision and asks the Board Members to reverse the precedent, and the Board Members issue their decision on appeal.

While these mandatory meetings (including but not limited to captive audience meetings) remain lawful for the time being, employers who utilize them to campaign or communicate with employees run the risk of drawing attention from the general counsel. Employers that use these meetings as part of an election campaign and prevail in a labor election run the risk that the use of mandatory meetings may invalidate the outcome of the election.

The GC Memo creates great uncertainty for employers seeking to communicate their labor views to employees amid a rising unionization movement. While the implications of the GC Memo are yet to fully be seen, employers should consider the following:

  • Train supervisors on the types of activity protected by the NLRA;
  • Review current communication practices with employees to evaluate risk of an employee claiming they were “cornered” by management to discuss labor topics;
  • Before hosting a mandatory meeting during an organizing campaign, weigh the potential benefits of the communication against the risk that it may invalidate the results of the upcoming NLRA election;
  • Consider making employee attendance at labor meetings voluntary, and informing employees that they are free to leave without any adverse consequences; and
  • Consult an attorney with any specific inquiries.