Employer Gag Order: Here We Go Again

State lawmakers are once again attempting to suppress workplace communications between employers and employees.

The legislature’s Judiciary Committee and Labor and Public Employees Committee are each pushing retread versions of past failed bills that drastically restrict employer-employee interaction.

The Labor Committee’s proposal is one of a number of costly new workplace mandates it introduced Feb. 15 at its first hearing of the 2022 session.

The Judiciary Committee’s version is outlined in SB 163, which the committee will likely hear at its March 4 meeting.

Preempts Federal Law

The language in SB 163 mirrors that of bills from previous years, all of which failed—primarily because of legal opinions that they preempted federal law governing workplace communications.

“The fact that some lawmakers keep pushing, year after year, a bill that clearly contravenes federal law is concerning enough,” said CBIA president and CEO Chris DiPentima.

“How does this bill reverse Connecticut’s rapidly declining labor force? How does it fill the state’s 110,000 job openings?”

CBIA’s Chris DiPentima

“That they’re doing so at a time when employers—particularly small businesses—are struggling with the labor shortage crisis, inflation, supply chain bottlenecks, and COVID is just offensive.

“Where are state lawmakers’ priorities? How does this bill reverse Connecticut’s rapidly declining labor force? How does it fill the state’s 110,000 job openings?”

‘Adversarial Attitude’

CBIA’s Eric Gjede said SB 163 restricts an employer’s ability to discuss “political matters” in the workplace, allowing employees to leave any meeting they feel is “political.”

“The term political is so broadly defined in this bill that it includes not just legislation or regulations, but civic and community organizations,” Gjede said.

“The legislation not only dictates how employers interact with employees, it reflects an adversarial attitude toward business.”

CBIA’s Eric Gjede

“The legislation not only dictates how employers interact with employees, it reflects an adversarial attitude toward Connecticut businesses.”

Gjede also noted that the bill undermines government transparency and accountability, effectively silencing employer-employee communications about issues such as state contracting practices.

“The practical impact of this bill is that employers will never be able to hold a meeting and have honest conversations with employees without the risk of people walking out,” he said.

Free Speech

In 2018, then state Attorney-General George Jepsen warned lawmakers the National Labor Relations Act has exclusive authority over workplace interactions.

Jepsen wrote that the so-called captive audience bill “appears to fall within the area Congress intended to be free of regulation, and therefore a court would likely find it preempted by federal law.”

“The legislation may also be deemed an unconstitutional restriction on free speech under the First Amendment.”

Former NLRB chair Philip Miscimarra

That mirrored an opinion he issued in 2011.

In 2019, former Obama administration National Labor Relations Board appointee Philip Miscimarra told state lawmakers that year’s version of the bill “directly conflicts with the National Labor Relations Act.”

“The legislation may also be deemed an unconstitutional restriction on free speech and the exercise of free religion under the First Amendment,” he said in a written opinion.

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For more information, contact CBIA’s Eric Gjede (860.480.1784) | @egjede