NLRB’s Captive Audience Ban: Key Takeaways for Employers

In a long anticipated move, the National Labor Relations Board erased over 75 years of precedent and banned so-called “captive audience” meetings in a decision released on Wednesday.

Background: The Board has long permitted employers to hold mandatory meetings with employees during which they express views on unionization. Coined by labor advocates as “captive audience” meetings, they have long been a target for prohibition by organized labor and their NLRB allies. NLRB General Counsel Abruzzo has been pushing the current Board to ban the practice for the last two years.

Mandatory meetings banned: In Amazon.com Services LLC, the Board ruled that requiring employees to attend meetings in which the employer expresses its views on unionization violates federal labor law. In banning these meetings, the Board majority characterized them as “an extraordinary exercise and demonstration of employer power over employees” that violates employees’ rights to make a free choice on unionization. 

Board’s Definition of “Mandatory” Meetings on Unionization:

• If an employee could reasonably conclude that they are required to attend a meeting as part of their job duties or that failure to attend could result in adverse consequences.

• If a manager or supervisor directs an employee to attend a meeting, it is deemed mandatory, though such a directive is not required.

• Meetings put on an employee’s work schedule by a manager or supervisor.

What about employer free speech? Although both the First Amendment and the National Labor Relations Act grant employers certain free speech rights, the Board majority determined that these rights do not include mandatory meetings; employers are entitled to express their views but cannot compel employees to listen.

Voluntary meetings still lawful: Employers may hold meetings provided they notify employees that: (1) the meeting is voluntary, and employees will not be disciplined if they do not attend or leave, (2) the employer intends to express its views on unionization, and (3) the employer will not keep records of which employees do or do not attend.

Why it matters: By preventing employers from holding these meetings to present their arguments or provide contextual or factual information, the Board has continued its push to remove employers from union campaigns altogether. The Board previously sanctioned card check bargaining (in practice), prohibited employers from telling employees that a union could get in between employees and management, and drastically condensed the timeline for union elections.

A silver lining? With the Republicans securing all three branches of government in last week’s election, time is getting very short for the Biden NLRB. Democrats could lose their Board majority as early as January 2025. At the very least, Republicans will control the Board by 2026, meaning the captive audience ban – among many other Biden Board policy changes – will not survive for very long.

Tips for employers:

• Make sure employees clearly understand that all meetings regarding unionization are voluntary, about unionization, and will not be recorded in any way.

• Ensure that managers and supervisors understand the contours of the new prohibition on captive audience meetings, and clearly communicate that covered meetings are voluntary.

• Consider alternative forums for union campaign messaging.