Employer Gag Order: Same Bill, Two Diverging AG Opinions

State Attorney General William Tong is supporting the controversial employer gag order bill that largely mirrors legislation his predecessor said likely preempted federal law.

Tong submitted testimony to the legislature’s Judiciary Committee March 4 noting his “strong support” for SB 163, the latest in a long line of bills suppressing workplace communications.

SB 163’s language largely mirrors that of its 2018, 2019, 2020, and 2021 cousins. The 2018 version drew a warning from Tong’s predecessor, George Jepsen, that it interfered with federal law.

“HB 5473’s attempt to prohibit mandatory meetings for such communications appears to fall within the area Congress intended to be free of regulation, and therefore a court would likely find it preempted,” Jepsen wrote to lawmakers in 2018.

That letter echoed an opinion he issued in 2011 for yet another legislative attempt to limit employer-employee interactions.

Same Bill, Different Year

2018: HB 5473 ("preempted by federal law")	2022: SB 163
"'Political matters' means matters relating to: Elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization;"	"'Political matters' means matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization;"
"'Religious matters' means matters relating to religious affiliation and practice and the decision to join or support any religious organization or association."	"'Religious matters' means matters relating to religious affiliation and practice and the decision to join or support any religious organization or association."
"... 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 political or religious matters ..."	"... 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 ..."

Legal Challenges

Backed by labor unions, state lawmakers have pushed these so-called captive audience bills for more than a decade.

All have foundered, often gaining support in certain committees before failing to gain traction on either the House or Senate floor—primarily based on concerns that the bills cannot withstand legal challenges.

CBIA’s John Blair 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.”

Connecticut should be in the driver’s seat, embracing the recovery and building a vibrant, robust economy, writes CBIA's @ChrisDiPentima. "Lawmakers must focus and make it easier to create jobs and keep residents and companies here." #RebuildCT #smallbiz https://t.co/XfSjM9kfia

— CBIA (@CBIANews) March 8, 2022

“The definition of ‘political matters’ is overly broad and problematic—it includes the terms ‘legislation’ and ‘regulation’ which would restrict employers from communicating on critical employment issues,” he told Judiciary Committee members March 4.

“If the proposal was law during the pandemic, it would have restricted employers communicating the wide array of employment related executive orders, laws, and regulations associated with the government’s management of the public health crisis.

“The bill ultimately places a gag order on employers, leaving employees in the dark on matters that directly affect them.

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

Broad Opposition

Numerous employers and business organizations also submitted testimony opposing SB 163, including:

• Able Coil & Electronics in Bolton
• Big Boy’s Toys LLC in Pomfret
• Carpin Manufacturing Inc. in Waterbury
• Clay Furniture Industries in Manchester
• Connecticut Hospital Association
• Fuss & O’Neill in Manchester
• Greater New Haven and Quinnipiac Chambers of Commerce
• Hartford-based United Parcel Service
• InCord in Colchester
• Insurance Association of Connecticut
• Lux Bond & Green, based in West Hartford, with additional locations in Glastonbury, Westport, and Mohegan Sun
• NFIB
• PTA Plastics in Oxford
• Schwerdtle Inc. in Bridgeport
• Edward Segal in Thomaston
• Stencil Ease in Old Saybrook
• Waterbury Regional Chamber

Garrett Sheehan, president and CEO of the Greater New Haven and Quinnipiac Chambers of Commerce, testified that the “bill has the potential to limit critical information between employers and employees related to the operation of the business and employer involvement in civic or community events.”

“The broadness of this bill will drastically affect business operations because employees could decide that critical meetings, such as diversity training, fall under political matters,” he said.

28 workplace mandates enacted in six years, and for what result? A shrinking labor force, high unemployment, weak job growth. You can only imagine the results if that energy went to policies that create jobs, opportunities, and economic growth. #RebuildCT https://t.co/XZVs9JxjDl

— Chris DiPentima (@ChrisDipentima) March 4, 2022

NFIB state director Andy Markowski told the committee SB 163 could adversely impact small business owners and their employees based on its “ambiguous” and “overly broad” language.

“Actual compliance with a law such as SB 163 would be virtually impossible for many small and closely held businesses, thus exposing the business to unnecessary and potentially costly complaints and frivolous litigation,” he said.

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For more information, contact CBIA’s John Blair (860.244.1921).