Employer Groups Challenge ‘Captive Audience’ Law
CBIA, the U.S. Chamber of Commerce, and a coalition of employer groups filed a lawsuit in the U.S. District Court for the District of Connecticut Nov. 1 challenging Connecticut’s so-called captive audience law.
The National Federation of Independent Business, National Retail Federation, Connecticut Retail Merchants Association, Coalition for a Democratic Workplace, National Association of Home Builders, Associated Builders and Contractors, and Associated Builders and Contractors of Connecticut are all part of the coalition.
Connecticut’s captive audience law took effect July 1, 2022 and threatens employers with liability for speaking with employees about a range of important workplace issues, including pending laws or regulations.
The controversial law drastically restricts employers from communicating with employees about “political matters,” with that term broadly defined to include legislative and regulatory proposals and participation in civic and community organizations.
The state legislature approved the measure this year following a decade-plus of failed attempts to pass similar legislation.
CBIA president and CEO Chris DiPentima called the captive audience law “an unnecessary and unconstitutional infringement on the rights of employers to communicate with employees in the workplace.”
“The decision to file this lawsuit was not taken lightly,” he said. “We value our working relationships and the open lines of communication with the administration and state policymakers.
“However, we must protect the constitutional rights of employers, particularly small businesses, to manage their workplaces free from government overreach.”
DiPentima said that despite the legislation’s approval, CBIA maintains good working relationships with the administration and policymakers from both sides of the aisle—as demonstrated by the bipartisan embrace of CBIA’s Transform Connecticut policy solutions—and the lawsuit’s timing reflected months of work between all stakeholders following the law taking effect.
“We believe it is important to act as expeditiously as possible to limit the potential disruptions for workplaces across the state,” DiPentima said.
“This is solely about correcting a policy decision that exposes Connecticut employers to expensive and time-consuming complaints and litigation for simply communicating openly with their employees.”
Free Speech Rights
The suit contends the captive audience law conflicts with employer free speech rights guaranteed by the National Labor Relations Act and infringes on the free speech guarantees of the First Amendment.
“Connecticut’s law is at odds with well-established First Amendment and NLRA precedents regarding the free speech rights of employers,” said Glenn Spencer, senior vice president of the U.S. Chamber of Commerce’s Employment Policy Division.
“Over a decade ago, the chamber sued the state of California over a similar law and won in the U.S. Supreme Court,” continued Spencer. “We’ll continue to defend an employer’s right to share opinions with employees so that they can make informed decisions.”
Associated Builders and Contractors of Connecticut president Chris Fryxell said state government intrusion in workplace communications “isn’t just wrong, it’s unconstitutional.”
“We are accustomed to defending our members from state government’s assaults on competitive bidding and free enterprise; but the trampling of federal law to stifle speech between employer and employee is a new level of government overreach,” he said.
“Businesses must be permitted to openly connect with their employees on important issues related to legislation, regulation, and unionization so that employees are able to make informed decisions about their own future and the future of the company.”
Small Business at Risk
“Connecticut retailers have been consistent throughout this debate: this state law is preempted by federal statute and violates the First Amendment,” said Connecticut Retail Merchants Association president Tim Phelan.
“Unfortunately, the Connecticut legislature was unpersuaded by our concerns, and therefore this lawsuit is appropriate.”
Beth Milito, the executive director of NFIB’s Small Business Legal Center, said “Connecticut’s small employers are at risk of being held liable for communicating with their employees about important workplace matters under this law.”
“Small business owners expect the freedom to communicate with their employees regarding various business issues,” she added. “This law is an example of government overreach and threatens to restrict the relationships between employer and employees.
“NFIB is challenging this law to protect small employers and their employees and to uphold their rights guaranteed by the First Amendment and NLRA.”
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