New York, Maine and Minnesota Ban Captive Audience Meetings

By Seth Kaufman and Henry Thomson-Smith © Fisher Phillips August 21, 2023

​Effective Aug. 1, Minnesota now prohibits employers from holding captive audience meetings—that is, requiring, under threat of discharge, discipline, or some other penalty, employee attendance or participation in employer-sponsored meetings or otherwise requiring them to listen or receive communications regarding employer opinions on religious or political matters.

These captive audience bans tilt the balance of power to labor unions, as they prevent employers from making the case as to why employees may not want to vote in favor of union organization. Minnesota now joins the ranks of Connecticut, Maine, and New York, which passed similar laws recently.

These states have largely justified such restrictions by asserting that captive audience meetings coercively interfere with employees' freedom of speech. Nonetheless, the states face a multitude of potential legal challenges, one of which has already succeeded.

Captive audience meetings have been upheld as a lawful exercise of employer free speech rights under Section 8(c) of the National Labor Relations Act (NLRA). This stems from the National Labor Relations Board's (NLRB) 1948 decision in Babcock & Wilcox, which held that mandatory group meetings are lawful under Section 7 of the NLRA.

In April 2022, however, NLRB General Counsel Jennifer Abruzzo expressed the view that mandatory captive audience meetings convened to discuss union representation actually violate the NLRA. In a controversial memo, she directed the agency's regional offices to pursue unfair labor practice charges against employers in an effort to ultimately reverse Babcock & Wilcox. The General Counsel maintained that employees would reasonably understand their presence to be mandated when they are forced to convene on paid time or cornered by management while performing their job duties.

State Laws

Oregon and Wisconsin were well ahead of the curve, passing their laws 14 years ago. But only one state's law was able to survive a legal challenge.

Oregon Rev. Stat. Ann. 659.785 was passed in 2009, taking effect on Jan. 1, 2010. The law prohibits employers from taking adverse action against an employee's refusal to attend an employer-sponsored meeting or otherwise listen to speech or view communications, the primary purpose of which is to communicate the employer's opinions on religious or political matters. Political matters include the decision to join, not join, support or not support a labor organization.

In 2020, the Trump-era NLRB sued Oregon to secure a declaration that the law should be blocked by the NLRA. In September 2021, the U.S. District Court for the District of Oregon dismissed the suit without reaching the merits of preemption on the basis that the NLRB lacked standing to assert the claim because it could not show that it had been injured. No further action was taken after that dismissal, given the winds of change that swept through Washington, D.C. in 2021.

Mirroring the Oregon legislation, Wisconsin passed the Wisconsin Fair Employment Act shortly thereafter. The law took effect in May 2010, but it was short-lived. Several business associations brought suit against the state and alleged the law encroached upon employer free speech rights and was therefore preempted by the NLRA. By November 2010, the parties had entered into a stipulation, later formalized into a judgment by the court, whereby Wisconsin agreed not to enforce the law on the basis that it was preempted by the NLRA.

The Connecticut legislature passed Conn. Gen. Stat. Ann. 31-51q, effective July 1, 2022, containing similar provisions to the Oregon and Wisconsin laws. The Connecticut law defined political matters to include union representation. Five months later, the U.S. Chamber of Commerce, among other business associations, brought suit in federal district court to invalidate the law, which remains pending. The suit alleges that the law violates employer free speech rights and that the law is preempted by the National Labor Relations Act (NLRA).

The Maine legislature passed 26 MRSA 600-B, which was signed into law by the governor on July 11. Likewise, New York passed Senate Bill S4982 on June 10 to amend New York Labor Law 201-d, which had already prohibited discrimination on the basis of an individual's political activities outside of working hours and other legal recreational activities. The law will go into effect as soon as the governor signs it. Interestingly, the legislature made clear that the bill was driven by concerns that "labor union membership has declined, and worker protections have been stripped."

Who’s Next?

California appears to be the state most likely to pass a captive audience prohibition next. Senate Bill 399 passed the state Senate on May 25 and was ordered to the Assembly. The California legislature likely will not pass this bill in 2023, but instead is aiming to finalize it during the 2024 legislative session.

Vermont, too, has a bill pending in the legislature banning captive audience meetings, but it appears it is farther away from passage than California's. Bill S.102 passed in the Vermont Senate at the end of March and is working its way through committees in the state's House of Representatives. Both laws are similar to those already passed and restrict employers from providing their opinion on unionization in mandatory meetings.

With more states imposing legislative restrictions on captive audience meetings, we can expect to see a bevy of additional legal challenges alleging NLRA preemption and unlawful employer free speech infringement. With the potential for conflicting decisions across various jurisdictions, it could be years before employers can secure a modicum of certainty in this area from coast to coast.

Coupled with lingering uncertainty over prospects that the NLRB General Counsel will prevail in her objective to render captive audience meetings unlawful, employers operating in states with existing captive audience prohibitions face double-sided uncertainty.

The interplay between the NLRA and state action warrants careful consideration. For example, state law may prohibit adverse action based an employee's refusal to attend an employer-sponsored meeting or listen to speech or view communications, but whether and to what extent this definition fully supports (or even conflicts) with the General Counsel's view remains to be seen.

Additionally, state laws will undoubtedly have specific nuances to their own legal jurisdictions, as interpreted by state courts based on their unique legislative histories. For instance, the preamble to the New York law states that the law would allow for "non-partisan communication, like neutral 'get out the vote' drives." This suggests that a captive audience meeting that is confined to encouraging participation in an upcoming union vote may not violate this law.

Employers operating in states that prohibit captive audience meetings should tread carefully, particularly to the extent that they plan to mandate attendance. Because these laws provide for private rights of action, employers confront the prospect of both state court litigation and corresponding unfair labor practice charges when taking adverse action against those who refuse to attend meetings or otherwise consider employer communications addressing issues such as union representation.

Seth Kaufman and Henry Thomson-Smith are attorneys with Fisher Phillips in New York. © 2023. All rights reserved. Reprinted with permission.



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