Employer Gag Order: Déjà Vu All Over Again

Bills suppressing employer-employee communication in the workplace appear annually at the state Capitol and 2020 is no exception.

They have never been successful—primarily because of legal opinions that the measures preempt federal law governing communications in the workplace.

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

In a written opinion, Jepsen wrote that the 2018 version of 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.

That version of the bill failed, as did two 2019 proposals—one that mirrored the 2018 bill and another that featured much of the same language.

Two Bills, Same Language

2019: SB 64 ("preempted by federal law")	2020: SB 318
"'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..."

Federal Law

CBIA’s Eric Gjede told the legislature’s Judiciary Committee March 6 that SB 318—this year’s bill—was nearly identical to those that were unsuccessful in previous sessions.

“All of these bills are the same in substance and even the verbiage is nearly identical,” he told committee members.

“If one is preempted by federal law, it is logical to conclude the others are as well.”

SB 318 restricts an employer’s ability to discuss “political matters” in the workplace, allowing employees to leave any meeting they feel is “political.”

“The practical impact of this bill is that employers will never be able to have honest conversations with employees.”

CBIA’s Eric Gjede

Gjede told lawmakers that the bill’s language means an employer talking about something as benign as sponsoring a scout troop could spark an employee walk out.

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

“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.”

Court Action

Last month, the National Labor Relations Board filed suit against the state of Oregon, saying that state’s workplace meetings law “violates an employer’s fundamental free speech right.”

Federal courts have struck down similar legislation in Wisconsin and California.

Other employer groups, including the National Federation of Independent Business and the Connecticut Hospital Association, also testified against SB 318 at the committee’s March 5 public hearing.

” The message sent by the passage of this bill will cause irreparable damage.”

Gjede

“If employers are going to take the risk of investing in their business and growing it here, they need to have the ability to communicate with the people they hire,” Gjede said.

“The message sent by the passage of this bill will cause irreparable damage to the state’s reputation as a place to do business.”

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