Under the National Labor Relations Act, employers have the right to require their workers to attend meetings on the company’s position on unions (called captive audience meetings). Employers have also used mandatory meetings to discuss issues involving politics and religion. Such practices are now under attack. In July 2024, both Hawaii and Illinois joined New York, Connecticut, Minnesota, Maine, and Oregon in enacting laws which prohibit employers from mandating attendance at employer sponsored meetings on political (including unions) or religious matters. Enforceability of these laws is unknown.
Hawaii
Hawaii’s Captive Audience Prohibition Act (Hawaii Revised Statutes § 377-6) took effect July 2, 2024. The law prevents employers from penalizing or threatening any adverse action against employees who decline to attend an employer sponsored meeting which communicates the employer’s opinion on political matters. The Act defines political matters as “anything related to an attempt to influence a future vote by persons in an audience.” Such meetings are allowed as long as employee attendance is entirely voluntary.
Illinois
On July 31, 2024, Illinois Governor J.B. Pritzker signed the Worker Freedom of Speech Act (SB 3649) into law, which is set to take effect January 1, 2025. The Illinois law prevents employers from disciplining employees who choose not to attend employer sponsored meetings relating to political or religious matters. Attendance must be entirely voluntary which also means that the meeting is not “incentivized by a positive change in any employment condition.” The Illinois law provides a more detailed definition of political matter: “matters relating to elections for political office, political parties, proposals to change legislation, proposals to change regulations, proposals to change public policy, and the decision to join or support any political party or political, civic, community, fraternal, or labor organization.” Religious matters are defined as “matters relating to religious belief, affiliation, and practice and the decision to join or support any religious organization or association.”
Under the Act, employees may bring a civil action seeking: injunctive relief; reinstatement to the employee’s former position or an equivalent position; back pay; reestablishment of any employee benefits, including seniority, to which the employee would otherwise have been eligible if the violation had not occurred; any other relief as deemed necessary by the court to make the employee whole; and reasonable attorney’s fees and costs if the employee prevails. Furthermore, the Illinois Department of Labor may impose a civil penalty of $1,000 dollars per violation. Each employee subject to a violation constitutes another separate violation.
This law was challenged nearly immediately by the Illinois Policy Institute, which filed a federal lawsuit early this month. They argue the law infringes on employer’s freedom of speech and claim the law is too broad.
Are bans on captive audience meetings legally enforceable?
Despite National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo’s efforts to the contrary, the National Labor Relations Act (NLRA) currently allows employers to hold mandatory meetings where management campaigns against unions. Historically, bans on such captive audience meetings have failed. Section 8(c) of the NLRA states “[t]he expressing of any views, argument or opinion… shall not constitute or be evidence of unfair labor practice… if such expression contains no threat of reprisal or force or promise of benefit.” Furthermore, the NLRB ruled in Babcock v Wilcox Co., 77 NLRB 577 (1948) that employers under the NLRA may hold captive audience meetings. But note, none of this addresses banning non-union related mandatory meetings.
In 2010, a similar law in Wisconsin was struck down in, Metropolitan Milwaukee Association of Commerce v. Doyle. The law was found preempted by federal law. More recently, in late July 2024, a federal judge permanently blocked part of Florida’s stop WOKE Act which attempted to prevent employers from holding mandatory meetings on viewpoints the state deemed offensive. Minnesota and Connecticut currently face ongoing challenges to their analogous version of the Illinois law.
While precedent suggests these laws are not enforceable, this cannot be said concretely as there are many pending challenges. This leaves Employers in a difficult position; comply with state law to avoid any potential penalties, take the risk of penalties for violating the laws, or challenge the law in court. Regardless of your choice, employers should follow the legal challenges these bans face, while keeping an eye on their own state’s regulations. As a final thought, Employers may consider holding non-mandatory meetings. While this avoids the real issue, it may be a good solution until this controversy is resolved, especially if attendance is not impacted. Seek legal counsel on how to do this.
Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
