Will Connecticut’s Captive Audience Law Survive Legal Challenge?
The following article was first published on Wolters Kluwers’ VitalLaw website. It is reposted here with permission.
A cadre of national and Connecticut business interests have sued in federal district court to invalidate the state’s recently-enacted law banning an employer from talking about unions (and other topics) at a meeting where employee attendance is required, a so-called “captive audience” meeting.
The plaintiffs contend the law violates the constitutional guarantee of free speech and is preempted by the National Labor Relations Act. The plaintiffs have very credible legal arguments.
Connecticut’s Act Protecting Employee Freedom of Speech and Conscience makes it illegal for an employer to threaten to or actually discipline or discharge an employee “on account of such employee’s refusal to (A) attend an employer-sponsored meeting with the employer or its agent, representative or designee, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters, or (B) listen to a “speech or view communications the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.”
The definition of “political matters” includes topics “relating to … the decision to join or support any … labor organization.”
The law has a few exceptions. An employer may communicate to employees any information the employer is required by law to communicate and information for employees to perform their job duties or, at institutions of higher education, about coursework.
“Casual conversations” are also exempted if participation is voluntary. The law does not apply to meetings limited to the employer’s managerial and supervisor employees.
That Connecticut would have an interest in restricting employer speech about unions is no surprise.
The state is a solid blue state with a Democratic trifecta—a Democratic governor and solid Democratic majorities in both legislative chambers. Labor officials have and have had significant roles in the legislature, including as Speaker of the House.
The law was enacted this past May; the lawsuit was filed in November.
The NLRA is our nation’s policy governing the relationship among employers, employees, and unions in the private sector.
The U.S. Supreme Court has created two preemption theories to protect that policy from state and local infringement.
Garmon preemption prohibits states and municipalities from regulating “activity that the NLRA protects, prohibits, or arguably protects or prohibits.”
Machinists preemption bars states and municipalities from regulating conduct that Congress intended to “be unregulated because it has been left to be controlled by the free play of economic forces.”
Section 8(c) of the NLRA—the “free speech” provision—governs an employer’s right to communicate with its employees about unions.
It states: “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this act, if such expression contains no threat of reprisal or force or promise of benefit.”
For about 75 years, an employer’s requiring employees to attend a meeting to discuss unions has been lawful under the NLRA.
The NLRB’s general counsel—the prosecutor of unfair labor practices—argued recently to overrule that precedent and prohibit an employer from holding such meetings.
Whether the NLRA continues to permit captive audience meetings or whether the law changes and such meetings become unlawful, it seems the Connecticut law regulates activity the NLRA “protects, prohibits, or arguably protects or prohibits.”
Its very purpose is to restrict employers’ ability to require attendance at such meetings.
The law may be preempted by Machinists as well.
In its 2008 decision, Chamber of Commerce v. Brown, the Supreme Court held that a California law prohibiting recipients of certain state grants from using that money to “assist, promote or deter union organizing” was preempted by the Machinists preemption doctrine.
The court said the “explicit direction from Congress” in Section 8(c) is “to leave noncoercive speech unregulated” and that the California statute regulate[s] within “a zone protected and reserved for market freedom.”
The Connecticut law regulates noncoercive speech as well—again, that is its purpose.
Connecticut was well aware of the preemption challenge before enacting the law. Just four years
ago, a past Connecticut Attorney General opined that a bill with the exact same language as the one enacted last May was preempted by the NLRA.
In 2019, the current Connecticut Attorney General acknowledged the possibility of a preemption challenge but concluded that the bill “is defensible and, if enacted, this office stands ready to defend it.”
The recently-filed litigation gives him that opportunity.
The County of Milwaukee and State of Wisconsin enacted similar laws and failed in their efforts to defend them.
The Seventh Circuit struck down a 2000 Milwaukee County captive audience ban because it was preempted by the NLRA.
In Wisconsin, when a lawsuit was filed claiming its 2010 captive audience ban was preempted by the NLRA, the state did not defend the law and agreed not to enforce it.
In 2006, the Colorado legislature passed a similar ban; the governor vetoed it.
Oregon is the only jurisdiction with such an ordinance today. Enacted in 2010 and enforced
through a private lawsuit, no reported decisions address the substantive preemption or First
Either employers are following it or, if violations are occurring, they are not being challenged.
Free Speech Issue
The First Amendment of the Constitution states that “Congress shall make no law abridging the
freedom of speech.”
The Supreme Court observed that “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
The same bans on abridging free speech that apply to the federal government apply to states as well.
Regulating employer speech on labor issues is “a form of prohibited content-based discrimination,” according to the complaint challenging the Connecticut law.
It is also a form of prohibited viewpoint-based discrimination because it prevents employers from “sharing true facts with employees about the costs of unionization, such as employees’ need to pay dues for representation, unions’ interference with employer-employee relationships, unions’
prioritization of the collective over the individual employees, and the financial impacts on
To claim that Connecticut’s law banning employers from talking about unions at a meeting where employee attendance is required does not restrict employer expression because of “its message, its ideas, its subject matter, or its content,” some will argue, belies the law’s very purpose.
Florida and Connecticut have little in common with labor’s influence in the legislature.
However, a recent Florida law has similarities to the Connecticut law.
Earlier this year, Florida amended its civil rights law with the Individual Freedom Act, which made it an unlawful employment practice for an employer to require employees to attend a training or “any other required activity” that promotes any of eight listed topics related to race, color, sex or national origin.
A lawsuit sought to enjoin the law, arguing it was unconstitutional because it regulated speech based on its content and viewpoint.
In granting the injunction, the court rejected Florida’s argument that the statute does not regulate speech but only regulates “the conduct of making attendance at training events or sessions [covered by the IFA] mandatory” for employees.”
Also, the court said that whether to hold the meeting on the topic is itself “expressive speech.”
The court also dismissed Florida’s argument that it was protecting employees’ free speech by giving unwilling listeners the right to not listen to speech they do not want to hear.
Connecticut may make the same argument since an earlier version of its bill sought to protect employees’ “right not to be required to listen to speech.”
The Florida court said that “neither the Supreme Court nor the Eleventh Circuit has held that the captive audience doctrine applies in the employment context, let alone to private employers.”
Also, courts have applied that doctrine “only sparingly,” noting that were it to be broadly interpreted, it “would effectively empower a majority to silence dissidents simply as a matter of predilections,” the court said.
The court added that even if that doctrine applied, it would not survive the strict scrutiny analysis required to uphold it.
Florida has appealed the district court’s decision to the United States Court of Appeals for the Eleventh Circuit.
Connecticut would have an additional practical challenge in arguing that its law attempts to protect employees’ rights as unwilling listeners rather than a blatant effort to help unions organize employees.
Last year, Connecticut passed a law requiring public employers to give the union representing its employees access to new employee orientation so labor representatives can pitch to them the benefits of supporting the union.
The law does not give an employee the right to walk out of that meeting.
Whatever purported government interest Connecticut may argue exists to support its captive audience ban in the private sector is undermined by its sanctioning, indeed requiring, such meetings in the public sector.
The only way to reconcile the requirements of these two laws is to recognize that labor benefits under both.
If the plaintiffs prevail, the Connecticut law will rest in peace on either the preemption heap, alongside the failed captive audience bills of Milwaukee County, Wisconsin and Colorado, or on the First Amendment heap alongside the efforts by government to abridge free speech despite the First Amendment’s injunction to not do so.
If the Connecticut law survives this challenge, it may be a harbinger of more legislation restricting speech, leading to the further dilution of rights afforded by both the First Amendment and Section 8(c) of the NLRA.
About the author: Michael Soltis is an attorney, author, arbitrator, speaker, and adjunct law professor of employment and labor law. He represented employers in employment and labor law matters for more than 35 years with a national labor and employment law firm.
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