Biglaw firm Littler Mendelson has a reputation for being among the top Labor & Employment practices. Indeed, they’ve repeatedly taken top honors in the Vault ranking in the category. And that tradition of representing employers was on display during a recent webinar.
The presentation, Captive No More: What Rhode Island’s New Workplace Speech Law Means for Employers, (CLE credit pending!) was touted on the firm’s website and was designed to provide insight on Rhode Island’s ban on “mandatory workplace meetings to discuss political or religious matters, including whether employees should join or support a labor union.” The American Prospect obtained details of what was said during the webinar and the attorneys who presented — Jillian Folger-Hartwell ad Gregory Tumolo — say the “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.” And made it clear ignoring the law is on the table.
“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.
Sure… breaking the law is always a “choice,” but it’s not one Biglaw lawyers are usually this frank about. Remember, this wasn’t advice given behind a closed door and attaching attorney/client privilege. Nope, this was part of a well-publicized presentation. It feels a lot like they’re trying to drum up business for their litigators, and take advantage of the conservative tilt of courts these days.
The federal precedent on captive audience meetings is murky at best.
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.
And there’s not currently a quorum at the NLBR, further delaying clarity on the issue and the Amazon case is on appeal to the 11th Circuit.
But the Littler attorneys seems quite confident about a challenge to the RI law. “Note that mandatory meetings have tremendous value,” Tumolo reportedly 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.”
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 [Patrick Crowley, president of the Rhode Island AFL-CIO] 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.
That’s certainly one reason for openly discussing such an audacious strategy for dealing with state law.
Above the Law reached out to Littler for comment, but did not immediately hear back.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
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