Captive Audience Meetings: An Area Fraught for Employers

So far, the NLRB has maintained course. That, however, doesn’t end the discussion. Several states have completely banned captive audience meetings.

Those enactments have much in common. Here’s an overview:

Connecticut

Enacted in 2022, Connecticut’s Act Protecting Employee Freedom of Speech and Conscience, Public Act No. 22-24 prohibits secular employers from disciplining or threatening to discipline employees for (1) refusing to attend an employer-sponsored meeting for the primary purpose of communicating the employer’s opinion concerning political matters, including matters relating to the decision to join or support any labor organization; or (2) refusing to listen to speech or view communications, the primary purpose of which is to communicate the employer’s opinion concerning those matters. Aggrieved employees may sue violators for the full amount of gross loss of wages or compensation as well as the employees’ costs and reasonable attorneys’ fees.

Maine

In 2022, Maine enacted the state’s Act to Protect Employee Free Speech. Under it, secular employers may not discharge, discipline, or otherwise penalize or threaten to discharge, discipline or otherwise penalize or take any adverse employment action against an employee because the employee (1) declines to attend or participate in an employer-sponsored meeting, or any portion of such a meeting, that communicates the opinion of the employer about political matters, including matters relating to the decision to join or support any labor organization; (2) declines to receive or listen to a communication from the employer, or any portion of such a communication, that conveys the employer’s opinion about such matters; or (3) in good faith reports a statutory violation or a suspected violation. Also, employers must display a poster where they customarily place employee notices that describes employee rights under the statute.

Aggrieved employees may sue their employer for injunctive relief, reinstatement to their former or equivalent position, back pay and reestablishment of any employee benefits including seniority, to which they would have been eligible but for the violation, and any other relief that the court deems necessary.

Minnesota

Enacted in 2023, Minnesota statute 181.531 bars employers from discharging, disciplining, or otherwise penalizing, threating to discharge, discipline, or otherwise penalize, or taking any adverse employment action against an employee because the employee (1) declines to attend or participate in an employer-sponsored meeting or declines to receive or listen to communications from the employer if the meeting or communication is to communicate the employer’s opinion about political matters, including matters relating to the decision to join or support any labor organization; (2) as a means of inducing an employee to attend or participate in such meetings or receive or listen to such communications; or (3) because the employee reports a violation or a suspected violation of the statute.

Violators may face a lawsuit in which the court may award a prevailing employee all appropriate relief, including injunctive relief, reinstatement to the employee’s former or an equivalent position, back pay and reestablishment of any employee benefits, including seniority, to which the employee would have been eligible but for the violation, and any other relief that the court deems necessary to make the employee whole. Also, the employer must pay a prevailing employee’s reasonable attorneys’ fees and costs.

New York

In 2023, New York enacted the New York Labor Law Section 201-D, to protect employee freedom of speech and conscience. The statute makes it unlawful for an employer to refuse to hire, employ, license, discharge, or otherwise discriminate against an individual for refusing to (1) attend an employer-sponsored meeting, the primary purpose of which is to communicate the employer’s opinion concerning political matters, including the decision to support or join any labor organization; or (2) listen to speech or view communications, the primary purpose of which is to communicate the employer’s opinion concerning such matters. Aggrieved individuals may sue for equitable relief and damages. Also, New York’s Attorney General may seek an order enjoining or restraining the violation. In those proceedings, the court may impose a civil penalty equal to $300.00 for the first violation and $500.00 for each subsequent violation.

The statute requires employers to post in every location in which they ordinarily post labor notices, a notice that informs employees about their statutory rights.

Oregon

Oregon was the first state to enact a captive audience law. Passed in 2010, ORS 659.785, prohibits employers from discharging, disciplining, or otherwise penalizing, threatening to discharge, discipline, or otherwise penalize, or taking any adverse employment action against an employee (1) because the employee declines to attend or participate in an employer-sponsored meeting or communication with the employer if the primary purpose of which is to communicate the employer’s opinion about political matters, including the decision whether to join, support, or not support any lawful constituent group, such as a labor organization; (2) as a means of requiring an employee to attend such a meeting or participate in such communications; or (3) because the employee reports, in good faith, a statutory violation or a suspected violation. An aggrieved employee may sue to recover all appropriate relief, including injunctive relief, rehiring, or reinstatement of the employee to their former, or an equivalent, position, backpay and reestablishment of any employee benefits, including seniority, to which the employee would be eligible but for the violation, and any other relief that the court deems necessary to make the employee whole. Also, prevailing employees are entitled to recover treble damages and reasonable attorneys’ fees and costs.

Additionally, Oregon’s statute requires employers to post, in a place normally reserved for employment-related notices and in a place commonly frequented by employees, a notice that summarizes employee rights under the statute.

Vermont

Vermont’s captive audience legislation, Vermont Act 117 (S. 102), went into effect this month. It prohibits employers from discharging, disciplining, penalizing, or otherwise discriminating against, or threatening to discharge, discipline, penalize, or otherwise discriminate against an employee (1) because the employee declines to (A) attend or participate in an employer-sponsored meeting for which the primary purpose is communicating the employer’s opinion about political matters, including the decision to join or support any labor organization; or (B) view or participate in communications about such matters; or (2) as a means of requiring an employee to (A) attend an employer-sponsored meeting that has the primary purpose of communicating the employer’s opinion about political matters; or (B) view or participate in communications with or from the employer that have the primary purpose of communicating the employer’s opinion about such matters.

Washington

Like the Vermont statute, Washington’s Employee Free Choice Act also went into effect this month. It prohibits secular employers from subjecting or threatening to subject to discipline, discharge, or otherwise penalize or take adverse action against an employee (1) because the employee has refused to (A) attend or participate in an employer-sponsored meeting the primary purpose of which is to communicate the employer’s opinion concerning political matters, including the decision to join or support a labor organization; or (B) listen to speech or view communications, including electronic communications, the primary purpose of which is to communicate the employer’s opinion on such matters; (2) as a means of requiring an employee to attend a meeting or participate in such communications; or (3) because the employee reports in good faith a violation or suspected violation of the statute.

An aggrieved employee may sue to enforce the statute. And, if the employee prevails, the court may award them all appropriate relief, including injunctive relief, reinstatement to the employee’s former position or an equivalent position, back pay, and reestablishment of any employee benefits, including seniority, to which the employee would have been eligible had the employer not violated the statute, and any other relief that the court considers necessary.

Covered employers must post a notice of employee rights under the statute in a place normally reserved for employment-related notices and in a place only frequented by employees.

Takeaway

Don’t assume that the NLRB’s inaction, thus far, on Jennifer Abruzzo’s proposed complete ban on captured audience meetings means that your organization is free to conduct them up to 24 hours before a union election. Ample time remains for the Board to endorse it. Also, seven states, Connecticut, Maine, Minnesota, New York, Oregon, Vermont, and Washington, have prohibited captive audience meetings without regard to when they occur. Other states likely will follow suit.

State bans have been challenged in court, and doubtlessly will continue to be challenged, as infringements on employer First Amendment rights and/or preempted by the NLRA. Those suits, however, face uncertain prospects. Thus, unless courts rule otherwise, you should assume that the state bans are enforceable.

This, in short, is a fraught area through which employers should tread cautiously.

We will continue to monitor and report key developments. If you have questions, please feel free to contact the authors or the ArentFox Schiff attorney who represents you.