Governor Urged to Veto ‘Unconstitutional’ Employer Gag Order

CBIA and over 50 businesses and organizations are calling on Gov. Ned Lamont to veto legislation widely regarded as an unconstitutional attempt to restrict workplace communications and an infringement on employer free speech rights.

In a May 2 letter to Lamont, employers and business groups called SB 163 “an unnecessary and unconstitutional restriction on employers’ free speech rights that will have negative unintended consequences.”

CBIA president and CEO Chris DiPentima noted that almost identical bills attracted written opinions in 2011 and 2018 from then Connecticut Attorney General George Jepsen that “a court, if faced with the issue, would likely hold that such a provision is preempted.”

DiPentima also cited a 10-page, May 8, 2022 opinion written by Philip Miscimarra, an Obama administration appointee to the National Labor Relations Board who served from 2013 to 2017—including a period as chair—noting that the bill “is preempted by the National Labor Relations Act.”

“A finding of federal preemption would be warranted because Senate Bill 163 prohibits mandatory employer meetings (involving employer speech, communications, and opinions regarding union issues) that are protected by federal law,” wrote Miscimarra, now a partner with Washington, D.C. law firm Morgan, Lewis & Bockius LLP.

“Many other NLRB and Supreme Court cases have addressed—and upheld—the legality of captive audience meetings like those that would be invalidated by Senate Bill 163.”

First Amendment Issues

The opinion also notes that “Senate Bill 163 raises significant First Amendment concerns under the U.S. Constitution involving infringement on freedom of speech and religion.”

Miscimarra wrote “the First Amendment, which (in combination with the Due Process Clause of the Fourteenth Amendment) prohibits the federal and state governments from prohibiting the free exercise of religion or abridging the ‘freedom of speech … or the right of the people to peaceably to assemble….'”

“This bill does not say Connecticut is open for business.”

CBIA’s Chris DiPentima

DiPentima said that “not only is this bill preempted by federal law, it shows a complete lack of focus by policymakers on the key challenges facing the state’s economy and its job creators.”

“This bill does not say Connecticut is open for business,” DiPentima said. “This bill was pushed by groups representing less than 10% of Connecticut’s population and 18% of the workforce.

“It does nothing to address the state’s 109,000 job openings, the declining labor force—our pandemic losses represent a stunning 41% of the U.S. decline—soaring inflation, or supply chain bottlenecks.”

Workplace Disruptions

Brian Montanari, president and CEO of Glastonbury-based HABCO Industries and Jocelyn Feder, vice president of human resources and talent engagement at AI Engineers in Middletown, said the bill will negatively impact employer-employee communications.

Montanari, president and CEO of Glastonbury-based HABCO Industries, said he feared the legislation would disrupt his workplace and inhibit the aerospace manufacturer’s growth. 

“If Connecticut becomes a state where employers can’t have open conversations with employees, we no longer attract businesses, talent, or new residents.”

HABCO Industries’ Brian Montanari

“The employee-employer relationship is so important,” he said. “If Connecticut becomes a state where employers can’t have open conversations with employees, we no longer attract businesses, talent, or new residents.”

Feder said AI Engineers was expanding its diversity, equity, and inclusion efforts and that the bill’s broad and ambiguous language “will stall and even prevent those efforts.”

“Many Connecticut businesses are making strides in changing the environment to be more inclusive and the way this bill is written will potentially stymie business DEI efforts, which in turn lessens opportunities for women, minorities, and LGBT employees to have a voice in the workplace,” she said. 

‘Yet Another Obstacle’

Garret Sheehan, president and CEO of the Greater New Haven and Quinnipiac Chambers of Commerce, said Public Act 22-24 restricts conversations between employers and employees on a number of topics related to the workplace, such as legislation and regulations that impact businesses and employees. 

“The broad definition of the term ‘political matters’ in this 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,” he said. 

Associated Builders and Contractors of Connecticut president Chris Fryxell said the governor must veto the bill “to send a strong message to the business community that he supports the state’s economic recovery.”

“Businesses in Connecticut have endured so much adversity but have worked time and time again to overcome significant challenges,” he said.

“As our businesses work to pick themselves up, our government is placing yet another obstacle in the way.”

Associated Builders and Contractors of Connecticut president Chris Fryxell

“Now as our businesses work to pick themselves up once more, our government is placing yet another obstacle in the way of free enterprise.”

 NFIB Connecticut state director Andrew Markowski said that at a time of record-high inflation and a historic labor shortage, “it was disappointing” that lawmakers would choose to pass the bill.

 According to NFIB’s latest small business survey, labor costs are at a 48-year record high.

“Our small business owners here in Connecticut have made it clear when it comes to this legislation: they operate on an open door policy and their employees have access to management at any given time,” he said.