John D. Doyle, Jr.
Regional Director
National Labor Relations Board
New York, NY
Dear Director Doyle,
This letter is in support of the accompanying unfair labor practice charge against Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”), which we believe is violating Section 7 of the NLRA by interfering with workers’ right to engage in protected concerted activity. The facts underlying the charge raise significant concerns about workers’ ability to engage in “mutual aid and protection” outside the context of a union.[1] As you know, mutual aid and protection has been interpreted to mean concerns “as employees” that implicate terms and conditions of employment.[2] Such conditions include things like how much you earn, when you work, what you do at work, with whom you work, and your professional obligations. Several of these categories are implicated here. The National Institute for Workers’ Rights is filing this as an organization concerned about the widespread violation of workers’ rights and is not submitting this on behalf of Skadden employees.
Factual Basis
On March 6, 2025, President Trump issued an executive order against the law firm Perkins Coie, citing the firm’s diversity, equity, and inclusion practices and past legal work in the 2016 election.[3] On March 14, the President issued a similar order against the firm Paul Weiss, which was rescinded after the firm agreed to provide $40 million in pro bono services supporting Trump-aligned causes and discontinue its diversity, equity, and inclusion initiatives.[4]
The pressure on major law firms escalated on March 17 when Equal Employment Opportunity Commission (EEOC) acting chair Andrea Lucas requested extensive information from Skadden and 19 other firms about their diversity, equity, and inclusion employment practices, particularly targeting programs like the Sponsors for Educational Opportunity (SEO) Law Fellowship.[5] Dozens of law firms including Skadden offer the fellowship which, while open to all, encourages applicants from underserved backgrounds.[6] These requests were widely viewed as a threat against firms maintaining diversity, equity, and inclusion initiatives.[7]
On March 20, Skadden associate Rachel Cohen sent an internal “conditional notice” of resignation, stating her decision was prompted by “Paul Weiss’ decision to cave to the Administration.”[8] She outlined conditions for staying, including signing an amicus brief supporting Perkins Coie against Trump’s executive order, committing to broad client representation, refusing to cooperate with the EEOC’s request for employee information, refusing to terminate employees at the administration’s directive, and maintaining diversity, equity, and inclusion initiatives and affinity groups.[9] Cohen also issued a call to action to her colleagues: “Do not recruit for this firm if they cannot protect their employees.”[10] Skadden terminated Cohen shortly afterward.[11]
On Friday March 28 at 12:03pm, in response to a “Thank You and Farewell” email from a Skadden employee, someone appears to have emailed the firm’s IT department, asking: “Should this be possible?”[12] In response, an email directed to the firm’s Executive Chair Jeremy London and General Counsel Larry Spiegel was sent accidentally to a broad list indicating “This was not sent to the Firm or Region distribution lists…We are working on blocking many more lists now.”[13] According to an anonymous Skadden employee, the firm had “turned off firm email lists to silence people” before announcing the Trump agreement.[14]
At 12:57pm, President Trump announced an agreement with Skadden on Truth Social, “Skadden will provide a total of at least $100 Million Dollars in pro bono Legal Services, during the Trump Administration and beyond, to causes that the President and Skadden both support. . . [and] the Firm will not engage in illegal DEI discrimination and preferences.”[15] While the announcement indicated that the pro bono “causes” would include assisting veterans and other public servants, combatting anti-Semitism, and “ensuring fairness in our Justice System,” it was not clear if the list was exclusive. Indeed, the President later indicated that tariff negotiations was one possibility for pro bono work from law firms that had reached agreements.[16] “We’re going to have to use those, those great law firms,” Trump explained. “We’re getting them for the right price, because we have to—we need a lot of talent. We have a lot of countries coming in. They want to make deals.”[17] Beyond tariff negotiations, Trump also suggested using the law firms to help the coal industry with leasing federal land.[18]
Despite communication restrictions, associates continued to contact each other to discuss these issues. In an anonymous email sent to associates on the day the deal was announced, a Skadden attorney stated that, “As we have just heard, Skadden has capitulated. . . by offering $100 million in pro bono legal services to causes approved by the President. . . I plan to make my voice heard by declining every Summer Program and recruiting event in my calendar. If you are comfortable doing the same, you can use the search bar in your calendar, open invites, and decline invitations which you’ve already accepted. I ask that you please share this message with our colleagues. The Firm is apparently blocking distribution lists and may be screening emails. This email will only reach a random segment of the firm.”[19]
Even after the deal was announced, fundamental questions remained as to the details of implementation, particularly as to its pro bono and diversity, equity, and inclusion elements. What kinds of pro bono assignments will be done for the government? How much of the existing pro bono work will remain? Who will decide? As to diversity, equity and inclusion, is the firm going to stop participating in the SEO program that led to successfully hiring several associates in recent years, or is that now considered “illegal DEI discrimination and preferences”?
The discussion among Skadden associates continued publicly and privately. Associate Brenna Trout Frey publicly resigned via LinkedIn, explicitly protesting “the firm’s decision to provide $100 million worth of pro-bono work to President Donald Trump’s administration and to step back from its diversity, equity, and inclusion initiatives.”[20] Frey called on her co-workers to think and act on these issues: “Fellow Skadden attorneys: If you agree with Jeremy London’s position that the firm should not engage in ‘illegal DEI discrimination,’ should devote prestigious Skadden Fellows to the Trump Administration’s pet projects, and should help ‘politically disenfranchised groups who have not historically received legal representation from major national law firms,’ (taking into account the robust pro bono work that major national law firms already do), then by all means continue working there. But … I hope you do some soul-searching over the weekend and join me in sending a message that this is unacceptable (in whatever way you can).”[21]
Associate Thomas Sipp resigned via an internal listserv for complex litigation, with the wider distribution lists being limited a few days before.[22] Sipp wrote that “there was a time when I sincerely believed that this place was committed to its true pro bono causes and diversity initiatives.”[23] He also pointed out: “It has also become clear to me that this firm no longer tolerates open discourse. Ahead of Friday’s announcement, the firm took preemptive action to silence critics by covertly limiting our access to firmwide distribution lists. This was a clear effort to silence criticism of the firm’s decision.”[24]
Argument
- Pro Bono Assignments Covered By “Mutual Aid and Protection”
Skadden’s agreement to provide $100 million in pro bono legal services to causes aligned with the Trump Administration represents a change to associates’ work assignments and therefore a topic covered by Section 7’s “mutual aid and protection” clause. In recruiting new lawyers, Skadden advertises its pro bono program as “a core aspect of [its] culture” and provides billable hour credit to associates for pro bono work.[25] When discussing why he chose to work at the firm, associate Sipp stated that, “Skadden really advertised two things: its pro bono program and its diversity initiatives. With regard to the pro bono programs, Skadden had a rule basically that said that you can count an unlimited number of your pro bono hours to your billable hours’ requirement.”[26] Following the agreement, associates were effectively being told that a significant portion of their professional time might now be dedicated to representing specific interests of the federal government rather than the range of pro bono matters previously available.
Associates who currently work on pro bono activities such as representing individuals in immigration matters, death row defense, and trafficking cases may have to work on other matters.[27] To be sure, employers are free to change their employees’ assignments if they so choose, including pro bono matters. The question is whether they can “interfere” with workers’ discussion of these changes. As the NLRB has recognized, assignments are part of the terms and conditions of employment covered by Section 7’s “mutual aid and protection” clause.[28]
- Diversity, Equity, and Inclusion Covered By “Mutual Aid and Protection”
Another central concern was the firm’s decision to “step back from its diversity, equity, and inclusion initiatives,” as noted in Frey’s resignation.[29] Participation in programs like the SEO Law Fellowship have been instrumental in developing diverse legal talent by providing young lawyers with mentorship, professional development, and advancement opportunities.[30]
The NLRB has consistently recognized that concerns about an employer’s hiring and diversity practices directly relate to terms and conditions of employment. In Tanner Motor Livery, Ltd., 148 NLRB 1402, 1404 (1964), the NLRB found that “an employer’s hiring policies and practices are of vital concern to employees inasmuch as such policies and practices inherently affect terms and conditions of employment.”[31] More recently, in Home Depot USA, Inc., 373 NLRB No. 25, 1 (2024), the NLRB reaffirmed that “the Act’s protection of concerted activities for mutual aid and protection includes efforts by employees to protest and redress racial discrimination in the workplace.” The NLRB has emphasized that such concerns affect all employees, noting in Dearborn Big Boy No. 3, Inc., 328 NLRB 705, 710 fn. 33 (1999) that “[i]t can hardly be argued, given the history of race relations in this country, that alleviating racial discrimination is not of interest to all employees in the workplace.”
The government’s pressure on Skadden to curtail these initiatives will affect who the current employees work with in the future. In expressing concern about backing away from diversity initiatives, some Skadden lawyers were indicating that they thought it was important to continue to try to hire more lawyers of color. The caselaw establishes that this is protected concerted activity.
- Professional Ethical Obligations Covered by “Mutual Aid and Protection”
Skadden’s actions place its associates in an ethically difficult position: forcing them to choose between keeping their job or risking violating their sworn oath to uphold the Constitution and the rule of law.[32] By implicitly agreeing to restrict legal representation for politically disfavored clients, the firm may effectively be forcing its attorneys to be complicit in the erosion of current and prospective clients’ constitutional rights, particularly the First, Fifth, and Sixth Amendments, which guarantee freedom of association, the right to petition the government, and the right to counsel.[33] Participation in any policy that limits representation undermines the foundational ethical duties of the legal profession, because the justice system cannot function unless private citizens are zealously represented by counsel that is genuinely independent of the government.[34]
When law firms like Skadden agree to dedicate resources to support Administration initiatives through mutually agreed projects, they effectively cede control over a piece of the firm to the government.[35] In any firm that settles with the government, attorneys are therefore placed in an untenable position where they will serve two masters: the law firm’s client and the government.[36] Every time lawyers file a brief, they will need to balance representing their client zealously against making sure not to undermine their firm’s deal with the government.[37] This is not simply a matter of firm management; it creates a conflict of interest for lawyers that may violate their ethical duties.[38]
While associates’ communications addressed broader concerns about the rule of law, they fundamentally centered on how these changes would affect their jobs and professional obligations. The fact that protected discussions about working conditions occurred alongside broader commentary about the rule of law does not strip these communications of their protected status under Section 7. As the First Circuit recognized in NLRB v. Me. Coast Reg’l Health Facilities, 999 F.3d 1, 13 (1st Cir. 2021), communications do not “impermissibly stray from labor concerns” when they address how workplace changes affect broader professional issues, as these concerns are “often inextricably intertwined” in professional settings.[39] Just as patient welfare and staffing levels are intertwined in health care, attorneys’ ability to uphold professional ethics in their day-to-day work and the rule of law are similarly interconnected here.
- Restricting Email Was Unlawful Interference with Protected Concerted Activity
The firm appears to have curtailed associates’ access to internal email lists to “interfere with” concerted activity. While employers generally have the right to restrict use of their email systems under Caesars Entertainment, 368 NLRB No. 143, 8 (2019), that decision expressly maintained that “proof of discrimination” against protected concerted activity does violate the Act. And in this context, unlawful discrimination consists of “disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.” Here, it appears there was disparate treatment of the communications because it was concerted activity for “mutual aid and protection.”[40] The fact that Skadden implemented the email restrictions in response to a resignation email, and on the same day that the deal with the Administration was publicly announced, supports an inference of discrimination if other communications about employee departures had previously been permitted.
The NLRB has also consistently held that implementing or reviving previously unenforced policies to inhibit protected activity is unlawful. As stated in Fremont-Rideout Health Group, 357 NLRB 1899, 1903 (2011), “It is similarly unlawful… for an employer to repromulgate a rule that was not previously enforced in retaliation for employees’ union or other protected Section 7 activity.” The NLRB has maintained this position in decisions including Dillon Companies, 340 NLRB 1260, 1260-61 (2003) and Harry M. Stevens Services, 277 NLRB 276, 276 (1985), noting that “an otherwise valid rule violates the Act when it is promulgated to interfere with the employee right to self-organization rather than to maintain production and discipline.”
Conclusion
In restricting associates’ ability to discuss changes to pro bono assignments and diversity initiatives, as well as risks to their professional obligations, Skadden may have interfered with its associates’ rights under Section 7 of the NLRA. Section 7 was designed to protect workers in precisely this kind of situation: when they seek to act together to address fundamental issues about their employment such as what they do and with whom they work. We urge the NLRB to investigate this matter and issue a complaint should the evidence support it.
Thank you for your attention to this matter.
Sincerely,
Jason Solomon
Director, National Institute for Workers’ Rights
Abby Frerick
Paul H. Tobias Fellow, National Institute for Workers’ Rights
[1] 29 U.S.C.S. § 157.
[2] Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978) (outlining the mutual aid or protection clause as follows: the employee or employees must seek to improve the terms and conditions of their employment, or otherwise improve “their lot as employees,” including through “channels outside the immediate employee-employer relationship.”).
[3] Exec. Order No. 14230, 90 Fed. Reg. 11,781 (Mar. 11, 2025), https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-perkins-coie-llp/.
[4] Exec. Order No. 14237, 90 Fed. Reg. 13,039 (Mar. 20, 2025), https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-paul-weiss/; Exec. Order No. 14244, 90 Fed. Reg. 13,685 (Mar. 26, 2025), https://www.whitehouse.gov/presidential-actions/2025/03/addressing-remedial-action-by-paul-weiss/.
[5] Equal Employment Opportunity Commission, EEOC Acting Chair Andrea Lucas Sends Letters to 20 Law Firms Requesting Information About DEI-Related Employment Practices (Mar. 27, 2025),
[6] Id.
[7] Madeleine Ngo, Trump Administration Questions Law Firms Over D.E.I. Employment Practices, The New York Times (Mar. 17, 2025), https://www.nytimes.com/2025/03/17/us/politics/trump-dei-perkins-coie-law-firms.html.
[8] Staci Zaretsky, A Third-Year Skadden Associate Is The Only Person In Biglaw Willing To Publicly Condemn Trump’s Threat To The Rule Of Law, Above the Law (Mar. 21, 2025), https://abovethelaw.com/2025/03/a-third-year-skadden-associate-is-the-only-person-in-biglaw-willing-to-publicly-condemn-trumps-threat-to-the-rule-of-law/2/.
[9] Id.
[10] Id.
[11] David Lat, A Skadden Associate Urges Peers To Stand Up For The Rule Of Law, Original Jurisdiction (Mar. 27, 2025), https://davidlat.substack.com/p/associates-rachel-cohen-of-skadden-and-ramon-ryan-of-orrick-call-on-biglaw-to-speak-out-against-trump.
[12] Kathryn Rubino, Skadden Learns The First Rule Of Blocking Mass Emails Is DO NOT SEND MASS EMAILS, Above The Law (Mar. 28, 2025), https://abovethelaw.com/2025/03/skadden-learns-the-first-rule-of-blocking-mass-emails-is-do-not-send-mass-emails/.
[13] Id (emphasis added).
[14] Id.
[15] Donald Trump, Truth Social (Mar. 28, 2025), https://truthsocial.com/@realDonaldTrump/posts/114241348699704594.
[16] Meridith McGraw, Trump Floats Enlisting Law Firms for Pro Bono Help With Tariffs, The Wall Street Journal (Apr. 8, 2025), https://www.wsj.com/livecoverage/stock-market-trump-tariffs-trade-war-04-08-25/card/trump-floats-enlisting-law-firms-for-pro-bono-help-with-tariffs-NXwch72Zjc35w1cKIYsD.
[17]Id.
[18] Id.
[19] Kathryn Rubino, Skadden Associates Plotting Protest Against Cowardly Firm, Above The Law (Mar. 31, 2025), https://abovethelaw.com/2025/03/skadden-associates-plotting-protest-against-cowardly-firm/.
[20] Brenna Trout Frey, LinkedIn,
https://www.linkedin.com/feed/update/urn:li:activity:7311501703134998531
[21] Id.
[22] Kathryn Rubino, Skadden Associate Gives Rousing Speech Before Quitting Fraidy-Cat Firm, Above The Law (Apr. 1, 2025), https://abovethelaw.com/2025/04/skadden-associate-gives-rousing-speech-before-quitting-fraidy-cat-firm/.
[23] Id.
[24] Id.
[25] Skadden, About: Pro Bono (2025), https://www.skadden.com/about/pro-bono/overview.
[26] The Daily, ’I Felt Ashamed’ Why One Lawyer Resigned When His Firm Caved to Trump, The New York Times (Apr. 7, 2025) https://www.nytimes.com/2025/04/07/podcasts/the-daily/skadden-lawyer-resigned-trump-thomas-sipp.html.
[27] Lisa Helem, Pro Bono Innovators 2024 Honoree Skadden, Arps, Slate, Meagher & Flom, Bloomberg Law (Nov. 21, 2024), https://news.bloomberglaw.com/business-and-practice/pro-bono-innovators-2024-honoree-skadden-arps-slate-meagher-flom.
[28] Interns4Hire.com, 370 NLRB No. 77, 11-12 (2021), citing New River Indus., Inc. v. NLRB, 945 F.2d 1290, 1294 (4th Cir. 1991).
[29] Brenna Trout Frey, LinkedIn.
[30] SEO Law, Fellowship, https://www.seo-usa.org/law/our-program/fellowship/.
[31] Enforced, NLRB v. Tanner Motor Livery, Ltd., 349 F.2d 1 (9th Cir. 1965).
[32] NY Jud L § 466 (2024).
[33] Brief of Amici Curiae 363 Law Professors in Support of Plaintiff’s Motion for Summary Judgment and for Declaratory and Permanent Injunctive Relief, Perkins Coie LLP v. U.S. Dep’t of Justice, No. 1:25-cv-00716-BAH, 2 (D.D.C. Apr. 2, 2025), https://law.stanford.edu/publications/brief-of-amici-curiae-363-law-professors-in-support-of-plaintiffs-motion-for-summary-judgment-and-for-declaratory-and-permanent-injunctive-relief/.
[34] Id. at 13.
[35] Adam Unikowsky, The Case for Suing, Adam’s Legal Newsletter (Apr. 9, 2025), https://adamunikowsky.substack.com/p/the-case-for-suing.
[36] Id.
[37] Brief of Amici Curiae Legal Ethics Professors in Support of Plaintiff, Jenner & Block LLP v. U.S. Dep’t of Justice, No. 1:25-cv-00916-JDB, 4 (D.D.C. Apr. 2, 2025), https://static1.squarespace.com/static/67d4400d37a2b91e3aba58d5/t/67f990145189c5306cd3011b/1744408597064/0062-001.+(04-11-2025)+LEGAL+ETHICS+PROFESSORS.pdf.
[38] Id. at 5-7.
[39] See also Valley Hosp. Med. Ctr., Inc., 351 N.L.R.B. 1250, 1252 (2007) (citing Brockton Hosp., 333 N.L.R.B. 1367, 1374-75 (2001), enforced in relevant part, 294 F.3d 100, 352 U.S. App. D.C. 302 (D.C. Cir. 2002); Misericordia Hosp. Med. Ctr., 246 N.L.R.B. 351, 356 (1979), enforced, 623 F.2d 808 (2d Cir. 1980))).
[40] Guard Publ’g Co., 351 N.L.R.B. 1110, 1118-19 (2007).
