Attorney General Again Advises Against Employer Gag Order

Issues & Policies

The state’s Attorney General has again told lawmakers a controversial bill restricting employer-employee workplace communications is preempted by federal law and would likely be struck down in court.

HB 5473, 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 the National Relations Labor Act, Attorney General George Jepsen wrote.

Captive audience opinion

Preempted: State Attorney General George Jepsen’s formal opinion on the proposed employer gag order bill.

Jepsen released his opinion on the bill April 26 in response to a request from Senate Republican President Len Fasano.

It marks the second time since 2011 that Jepsen advised that federal law appears to preempt attempts to prohibit mandatory meetings.

HB 5473 drastically limits what employers can discuss in the workplace by preventing them from speaking about anything defined as a “political matter,” which includes legislation or regulations that impact their businesses.

The bill even restricts employers from discussing their support for various civic, fraternal, or community organizations.

Jepsen said the U.S. Supreme Court “has long held that Congress, through the enactment of the NRLA, has preempted state law in two ways.”

Protected Activity

The first “prohibits states from regulating activity that ‘the NRLA protects, prohibits, or arguably protects or prohibits,'” Jepsen said, quoting a 1986 federal case.

The second “precludes states from states from regulating conduct that Congress intended to remain unregulated and left to ‘the free play of economic forces,'” Jepsen said, referring to a 1976 federal case.

Jepsen said that under existing case law, HB 5473’s “prohibition on mandatory meetings for communicating an employer’s opinion on the decision to join or support a labor organization would constitute the regulation of an activity that the NRLA protects or at least arguably protects.”

The bill distracts from the most important issue facing Connecticut—the urgent need to spur business investment and job creation.

He said the Taft-Hartley Act amended the NRLA in 1947 "to make clear, among other things, that noncoercive employer speech about unionization could not be a basis for an unfair labor practice."

Jepsen noted that "(a)t least one federal court of appeals has concluded that 'federal labor law allows employers to require their employees to attend meetings, on the employer's premises and during working time, in which an employer expresses his opposition to unionization.'

"We are not aware of, nor have we been presented with, any cases holding otherwise," Jepsen wrote.

'Unnecessary, Impermissible Restriction'

CBIA, in a statement, welcomed Jepsen’s opinion.

"Today's formal opinion issued by Attorney General George Jepsen on HB 5473 reinforces the business community's arguments: The National Labor Relations Act protects employer-employee communications and, therefore, preempts this bill," the statement said.

"If enacted, the proposal would prevent discussions in mandatory workplace meetings between employers and employees of any issues related to community engagement, unionization, wages and benefits, working conditions, and even legislation or regulations that could impact the business.

"In addition to being an unnecessary and impermissible restriction on the free speech rights of employers, the bill also distracts from the most important issue facing Connecticut and its policymakers—the urgent need to spur business investment and job creation in the state. 

"We urge the legislature to reject HB 5473."

The Judiciary Committee approved the measure April 2 on a 25-14 vote, with four Republicans joining all Democratic members in supporting the bill.

The Labor and Public Employees Committee followed April 26, sending it to the House on a 7-5 party-line vote.

Just as in 2011, Jepsen’s legal opinion should doom the bill.

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


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