In response to the deals several large law firms have reached with the Trump administration, associates at many of these firms are discussing ways to object to the dealmaking. Some associates have quit. Others have written letters. But another option under consideration is unionization. And, indeed, unionization would offer associates important powers and protections. In the immediate term, and irrespective of whether a union drive ever gets off the ground, labor law would provide protection against discharge or discipline for a wide range of organizing activity the associates might engage in. As long as the associates are acting collectively, and are advocating on issues that concern the terms and conditions of their employment, labor law insulates them from employer retaliation. This means any collective protest that focuses on the deals’ impact on work and working conditions (including, for example, the type and scope of pro bono work associates are asked to do, and the firms’ promotion policies) would be protected by the National Labor Relations Act. Should a union drive succeed at any of the firms, the law would then give the associates’ union the right to bargain with firm management over the content of the deals it cuts with the Administration, and the effects of those deals on associate work life. Unionization, if it results in a collective bargaining agreement, would also likely lead to increased protection against discharge for associates who object to the deals or to the ways the deals are implemented.

Some important considerations:

I. If associates successfully organize a union, bargaining over the deals and/or their effects would be required to the extent that the deals impact terms and conditions of employment. They almost certainly do. For example, the deals reached to date will result in shifts in the types of pro bono work that the firms provide and thus that associates perform. A union of associates could insist that firm management bargain, among other things, over assignments to this new work. Moreover, if firms attempt to change their promotion practices as a result of deals with the Administration, unions would have a right to bargain over these changes as well. A collective bargaining agreement could also offer strong protections against discipline or discharge for associates who protest a firm’s dealings with the Administration going forward.

II. To enjoy labor law’s protections, associates must qualify as employees, and not supervisors, under labor law. This classification turns on a lot of specific facts. The statute defines a supervisor as any person:

having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if . . . such authority is not merely routine or clerical in nature, but requires the use of independent judgment.

Moreover, to be a supervisor, one must spend a “regular and substantial” portion of one’s working time performing supervisory duties. Numerous NLRB decisions, mainly in the legal aid context, have held associates to be employees, not supervisors. The exception comes in instances when the associate can “effectively recommend” the hiring or firing of other employees (typically paralegals), but the normal day-to-day instruction of paralegals or other support staff is generally not enough to convert an associate into a supervisor.

III. Enforcement of labor law rights depends in part on a functioning NLRB. Currently, the frontline prosecutors and decisionmakers (ALJs) at the NLRB are operating, but the Board itself lacks a quorum because President Trump has removed Board member Gwynne Wilcox from office, and her challenge to the removal is pending at the D.C. Circuit. How this will all be resolved remains to be seen, but it does mean that enforcement of the above rights is less certain than at other times. And with administrative enforcement less certain, associates might have to rely more fully on each other to ensure that their rights are respected.