Not Just Chit-Chat: When Employers' Words Backfire as Opposition to Unions

By Kayla M. Jacob and Fred Preis

Starbucks has once again found itself in the hot seat with the National Labor Relations Board, this time for remarks by its then interim CEO Howard Schultz. The Board found that those remarks violated employees’ rights under the National Labor Relations Act.

While addressing employee concerns related to unionization during a companywide virtual meeting in 2022, Schultz made demeaning comments that included calling an employee “angry” and dismissing an employee’s concern by suggesting she had not worked there long enough to be dissatisfied. He also stated, “[I]f you’re not happy at Starbucks, you can work for another company.”

The Board viewed this comment as an implicit threat, implying that union supporters should quit and emphasizing that union activity conflicted with employment at Starbucks.

What's the moral of this story? Remember that it is unlawful for employers to interfere with, restrain, or coerce employees in the exercise of their rights to unionize. As such, choose your words carefully. When addressing employee concerns, especially regarding unionization, even subtle remarks can be perceived as coercive. For employers, responding without intimidation is crucial for complying with the National Labor Relations Act. Aside from possibly violating the law, ill-conceived responses may also result in harm to employee relations instead of motivating loyalty from employees.

Also, a public forum may not always be the best strategy for opposing unionization. When in doubt, and before hosting a company-sponsored meeting, consult with legal counsel for lawful methods of opposition.

Political Discussions at Work: Between a Ballot Box and a Hard Place

By Philip Giorlando and Fred Preis

With a presidential election days away, political discourse is in full swing, and likely will not end after the election is over. As with every election cycle, such political discussions can come into the workplace and lead to conflict between employees on different sides of the political spectrum. What is an employer to do?

There is no perfect answer here and employers take many different approaches to this issue. Some openly choose a political candidate or stance, with CEOs actively campaigning on their preferred candidate’s behalf. Prime examples of this include Elon Musk, who has not shied away from his support of former President Donald Trump, while the executive chair of Netflix, Reed Hastings, has announced his support for Vice President Kamala Harris. Other employers make every effort to remain a-political, not supporting any candidates or issues and simply continuing to do their work to contribute. With many different options available, employers need to know the laws at issue in order to best decide how to handle political discussions at work.

Federal and State Anti-Discrimination Laws

Federal and State laws prohibit discrimination in the workplace regarding protected characteristics such as race, religion, national origin, gender, sexual orientation, gender identity, and ethnicity. While “political party” is not a protected characteristic, it is easy to see how certain politically charged issues in this election can lead to protected characteristics, such as diversity, equity, and inclusion (“DEI”) initiatives, the conflict in Gaza, gender-affirming care, freedom of religion, abortion and reproductive rights, and immigration policies. Statements made against or in favor of groups sensitive to these issues could rise to the level of discrimination under Title VII and should not be tolerated in the workplace during working time or in work areas regardless of the political positions involved.

National Labor Relations Act- Right to Discuss Workplace Conditions

Another law that often comes into play is the National Labor Relations Act, which protects employee rights to discuss workplace conditions, wages, and benefits. Even if they are not a member of a union, employees can discuss issues such as increased wages, benefits, union organizing, and better working conditions. So, for example, if employees are discussing the political movement to increase the federal minimum wage, that discussion could be protected under the National Labor Relations Act.

Louisiana’s Political Activities Law

Louisiana also has a rarely-used law that prohibits employers from adopting any policy preventing its employees from engaging or participating in politics or from becoming a candidate for political office. Further, the law prohibits employers from controlling or directing the political affiliations or political activities of its employees in the exercise of political rights. The law carries criminal penalties for violations.

While several laws are at issue regarding political discussions at work, the safest course is to make the workplace as free from political discussions as possible within the boundaries of the law.

NLRB GC Targets 'Stay-or-Pay' Provisions as Unlawful

The National Labor Relations Board (NLRB) General Counsel, Jennifer Abruzzo, recently issued GC Memo 25-01, challenging the legality of certain "stay-or-pay" provisions. In her memo, Abruzzo argues that these provisions—which typically require employees to remain with a company for a specified period or face financial penalties—violate the National Labor Relations Act (NLRA) by limiting employees' rights to freely resign and potentially restricting labor mobility. This guidance could impact employers who utilize such agreements, as they may face new compliance challenges under the NLRA.