Hawaii's New ‘Captive Audience’ Law: What Employers Need to Know

Under current federal law, employers may legally require workers to attend meetings during working hours that concern the employer’s views on politics, religion and similar matters. Hawaii recently joined several states—including Connecticut, Illinois, Maine, Minnesota, New York, and Oregon—that have enacted laws restricting employers from requiring employees to attend such employer-sponsored meetings.

Hawaii’s Captive Audience Prohibition Act, Senate Bill 2715 (SB 2715), went into effect July 2 and is codified in Hawaii Revised Statutes Section 377-6. It expands Hawaii’s Unfair Labor Practices Law by prohibiting employers—acting individually or in concert with others—from discharging, disciplining, or otherwise penalizing or threatening any adverse employment action against an employee because the employee declines to:

• Attend or participate in an employer-sponsored meeting, or any portion of a meeting, which communicates the opinion of the employer about political matters; or
• Receive or listen to a communication from the employer that communicates the opinion of the employer about political matters.

SB 2715 defines “political matters” as “anything related to an attempt to influence a future vote by persons in an audience.” The law does not “limit the rights of an employer to conduct meetings or to engage in communications involving political matters as long as attendance by the employees is wholly voluntary.” SB 2715 broadly defines “employee” to include any individual:

• Employed in the domestic service of a family or person at the family's or person's home;
• Employed by the individual's parent or spouse;
• Employed in an executive or supervisory capacity;
• Employed by any employer employing less than two individuals; or
• Subject to the jurisdiction of the federal Railway Labor Act or the National Labor Relations Act (NLRA), as amended from time to time.

In April 2022, NLRB General Counsel Jennifer Abruzzo announced that she will urge the board to rule that employer-sponsored meetings violate the NLRA, an interpretation she said is “necessary to ensure full protection of employees’ statutory labor rights.” Such a ruling would substantially change longstanding federal labor policy by limiting free speech rights of employers embodied in Section 8(c) of the act and reversing the board’s approval of employer-sponsored meetings in its 1948 decision Babcock & Wilcox Co. So far, the board has declined to adopt the general counsel’s position despite being given the opportunity to do so in several cases.

Additionally, similar laws passed in Connecticut and Minnesota are being challenged in federal court as violating employers’ free speech rights under the First Amendment as well as being pre-empted under the NLRA. Analogous state laws have been struck down. SB 2715 may face similar challenges.

Concerns about the legality of SB 2715 put employers in a difficult position as employers are forced to choose whether to comply or challenge the new law on constitutional grounds.

Judy Iriye is an attorney with Littler in Honolulu. Kate Pitzak is an attorney with Littler in Walnut Creek, Calif. Chase Parongao is an attorney with Littler in Century City, Calif. © 2024 Littler. All rights reserved. Reposted with permission.