A management-side labor law firm advised on a private webinar that employers with a “high risk tolerance” could ignore a recent Rhode Island ban on forced employee attendance at anti-union meetings, because the meetings offer “tremendous value” to fighting union elections.
“We are not in the habit of advising you lightly that you should challenge laws,” said Jillian Folger-Hartwell, an attorney with leading anti-union law firm Littler Mendelson on the August 19 webinar, a transcript and PowerPoint presentation of which the Prospect exclusively obtained. But “if you are a bit more risk tolerant, and you want to continue” to hold the meetings, “that is a choice that you can make.”
While acknowledging that this would expose employers to litigation, Folger-Hartwell explained her firm’s view that there are “strong arguments” that the law is unconstitutional, and that ignoring it would be a “vehicle” for a legal challenge.
“I think it’s a classic case of corporate greed,” said Patrick Crowley, president of the Rhode Island AFL-CIO. “We pass a law in the state of Rhode Island and these people think they’re so above the law that they’re advising clients to just ignore it? The arrogance of what they’re saying is just obnoxious.”
The Littler lawyers on the webinar did not respond to a request for comment from the Prospect.
Advice that anti-union law firms give companies is not typically made public. But Littler promoted the webinar on its own website. Crowley and other labor officials in Rhode Island organized roughly three dozen union members to attend, but they were kicked off the call. The materials leaked anyway, and they offer a unique window into how Littler and other firms skirt the edges of labor law to help companies prevent collective bargaining among their workers.
In fact, Littler is proud of this reputation. One PowerPoint slide quotes approvingly from a 1996 San Francisco Chronicle article on the firm, in which a union lawyer said, “They’ll do about anything to accomplish their ends. They push the line as far as they possibly can and eventually step over.”
Reacting to this slide in the webinar, Folger-Hartwell responded, “We fight hard for our clients.”
Rhode Island is the most recent of 13 states to ban so-called “captive audience meetings,” which are all-employee assemblies that workers can be disciplined or even terminated for skipping. The meetings, which are heavily scripted by union avoidance consultants, offer a one-sided view of collective bargaining as damaging to businesses and harmful to employees, which could lead to cuts in pay and benefits and tear companies apart.
On the webinar, Folger-Hartwell and her Littler colleague Gregory Tumolo freely admit that captive audience meetings (which they call “mandatory employee education meetings”) are “one of the most effective ways for employers to communicate with employees freely to correct misperceptions and combat union propaganda.”
Unions and their allies have focused on the compulsory nature of these meetings in attempting policy reforms. The Rhode Island law, which passed with overwhelming majorities (30-4 in the state Senate and 71-2 in the House) and was signed into law on July 2, prevents employers from firing or penalizing employees for refusing to attend meetings where the employer expresses views on unionization. (Meetings where political or religious views are discussed also cannot be compulsory.) The ban on adverse actions also holds for refusing to listen to, watch, or read speeches or electronic communications.
“Employees shouldn’t be placed in a position where they are forced to listen to something that they choose not to listen to that’s outside the scope of their job,” said Bob Craven, the chair of the Rhode Island House Judiciary Committee and a co-author of the bill. “We’re still a free country, last I knew.”
Because it includes a private right of action, workers in Rhode Island can sue companies for making anti-union meetings mandatory, and win back pay and benefits, monetary damages, and attorneys fees.
At the federal level, the Biden-era National Labor Relations Board banned mandatory attendance at captive audience meetings in a case involving Amazon last November. Employers can still hold these meetings, the NLRB said, but they cannot take attendance and cannot discipline anyone for failing to attend. While President Trump’s acting NLRB general counsel issued a memo in February rescinding a Biden-era policy statement on captive audience meetings, that did not turn over the Amazon decision, which remains operative.
This potential end to the linchpin of countless union avoidance campaigns represented an existential threat to employers seeking to dissuade their workers from voting to unionize. Enter Littler Mendelson. Since the 1960s, the law firm has represented companies big and small around the world in unionization fights. Littler’s often ruthless tactics include captive audience meetings, election delays, and location closures. A decade-old document from the firm suggested that employers call the police on union officials.
Littler often cites attorney-client privilege in shielding its advice from scrutiny. Not much is even known about what Littler attorneys earn. In an engagement agreement with the City of Peekskill, New York, the firm says its attorneys make as much as $1,760 an hour, though it discounted rates for the city down to $550 an hour for partners, known as “shareholders.”
Littler has been unusually vocal about the captive audience meeting ban in Rhode Island. A blog post on the Littler website co-authored by shareholders Folger-Hartwell and Tumolo asserts that the ban is a “likely unconstitutional” chilling of employer free speech. They cited Section 8C of the National Labor Relations Act, which gives employers the right to “express their views freely and fully concerning unionization.” Other state captive audience bans in California, Connecticut, and Minnesota are being challenged on free speech grounds.
But employers in Rhode Island are not banned from talking about unions, Crowley said. “If an employer wants to hold a meeting and rant and rave about how bad unions are, go for it. You are perfectly entitled to do that,” he explained. “You just can’t punish someone if they don’t want to listen to it. If that person wants to go back to work or take their lunch break, you can’t take the behavior of firing the person for not listening to their speech.”
Craven, who co-wrote the law, agreed with that interpretation. “I have a right to go to protests, but do you have a right to pitch your protest to your employees?” he said. “Employees have a right to free listening. Let’s look at both sides of the First Amendment.”
In the post and at the webinar, Tumolo and Folger-Hartwell also argued that the NLRB ruling preempts Rhode Island’s and other state bans. That would make the Rhode Island law “potentially subject to some very strong challenge of being unlawful,” which is less than an ironclad guarantee.
“We are not in the habit of advising you lightly that you should challenge laws,” said Folger-Hartwell. But “if you are a bit more risk tolerant, and you want to continue” to hold the meetings, “that is a choice that you can make.”
The NLRB’s Amazon ruling is currently under appeal in the 11th Circuit; a decision there has not been reached. Of course, Trump’s NLRB could reverse the Amazon ruling at any time, but due to firings and expired terms it is currently working with only one board member, Democrat David Prouty, short of a quorum to conduct any business.
Folger-Hartwell said on the webinar that returning to a quorum “will happen and will happen shortly.” Trump has nominated two Republicans to fill seats on the board.
WITH BOTH THE NLRB’S AMAZON RULING and the Rhode Island laws in effect, Littler attorneys discussed “practical tips” for employers to hold meetings about unionization. A safe harbor in the Amazon ruling advised employers to provide advance written notice (including the subject matter), stating that attendance is voluntary, with no adverse consequences for failure to attend or to leave in the middle of the meeting. Attendance records should not be kept and the meetings should be held at a neutral location.
Folger-Hartwell added that managers should be trained on how to avoid coercive language at the meetings, how to respond to refusals to attend, and how to handle potential attendee disruptions.
But Tumolo jumped in at the end with one more slide, advising employers to think about holding mandatory meetings anyway. “Note that mandatory meetings have tremendous value,” Tumolo said on the webinar. “Historically these meetings have been found to be lawful… we’ve talked about the serious constitutional problems that these laws have.” The PowerPoint goes further, asserting that the Rhode Island law is “facially unconstitutional” and “likely preempted by federal law.”
Both Tumolo and Folger-Hartwell acknowledged that it would be time-consuming and expensive to challenge the law, especially with the current uncertain situation at the NLRB. But Crowley believes that getting companies interested in violating the law was the point. “They’re trying to find a client to make a case at the Supreme Court,” he said.
The end of the presentation offered some comic relief. The three dozen union members who signed up for the webinar left questions before being ushered off the call, which ranged from “How do you possibly sleep at night?” to “What type of terrible parent did you have in order to take employee rights away?” Folger-Hartwell and Tumolo both replied that they sleep “very well” and “soundly,” and reiterated their belief that they work hard for their clients to preserve their employer speech rights.
“Lastly,” Folger-Hartwell said, “We got some nice, not questions necessarily, but really friendly and supportive comments like, ‘You corporate, fascist pieces of trash’ and that kind of thing. And it was intended as insulting but I take advising employers as a compliment.”