Labor Board Decision Adds Twist to State Captive Audience Cases

A National Labor Relations Board decision to outlaw mandatory anti-union meetings at work creates a potentially confusing preemption wrinkle in an already complex string of challenges against state laws banning these gatherings.

Three states so far are defending bans on captive audience meetings against legal challenges by business and policy advocacy groups. Opponents have signaled more suits will come, including in California where a captive audience law is set to take effect Jan. 1, opening employers to potential state-agency enforcement and lawsuits with the threat of punitive damages.

The states argue the bans are needed to prevent employers firing or otherwise retaliating against workers who decline to listen to managers’ messages about politics, religion, and unions. But the challengers say the laws violate employers’ First Amendment rights and are preempted by federal labor law. Labor advocates say the meetings are a commonly used tool for employers trying to prevent employees from unionizing.

For the moment, efforts by state lawmakers to restrict captive audience meetings appear somewhat redundant due to the NLRB’s Nov. 13 Amazon.com decision’s nationwide scope. But the ruling will likely face reversal by a more business-friendly board majority after Donald Trump returns to the White House in January, lending a longer-term significance to the state-law challenges.

The decision arguably “takes the wind out of the sails for the preemption argument a little bit,” said Josh Nadreau, vice chair of the labor relations group at Fisher & Phillips LLP. “The thrust of that argument was this is governed by federal labor law and these are allowed under federal labor law.”

But there’s still the argument these state laws are subject to field preemption under federal labor law, meaning states have no authority to regulate regardless of whether their laws agree or conflict with federal law, he added.

Business groups challenging Connecticut’s law banning captive audience meetings plan to cite the NLRB decision as bolstering their case that federal labor law preempts state efforts in this area. Morgan Lewis attorneys representing the US Chamber of Commerce and other plaintiffs flagged the decision in a Nov. 14 filing to the federal district court, which is scheduled to hear cross motions for summary judgment Nov. 18.

Connecticut’s attorney general answered with a Nov. 15 filing arguing the opposite—that the NLRB decision strengthens the state’s case in defending its law.

The decision “confirms that prohibiting employers from coercing unwilling employees to attending meetings under threat of discipline or discharge is consistent with both the NLRA and the First Amendment,” the AG’s office wrote.

A federal court in 2010 blocked Wisconsin from enforcing its law, finding it preempted by the NLRA. Courts have dismissed at least two similar lawsuits against Oregon’s captive audience law without ruling on the merits, most recently in a 2020 decision finding the NLRB under the first Trump administration failed to show it had standing to challenge the law.

Connecticut Up First

The Connecticut litigation is further along than similar lawsuits in Illinois and Minnesota and the closest to potentially reaching a merits decision.

That decision “will have more influence on the state law challenges” than the NLRB decision, said Michael Lotito, cochair of the Workplace Policy Institute at Littler Mendelson PC.

As the cases progress, federal appeals courts could disagree on the validity of states’ captive audience bans, he added, teeing up a potential US Supreme Court review. The NLRB decision reversed decades-old precedent allowing employers to hold mandatory meetings to voice their views on unions, he said.

The challenge to Minnesota’s law, brought by business groups including Associated Builders and Contractors, is also due for a court hearing. A Minnesota federal district court will consider arguments Nov. 19 on whether to stay proceedings while state officials appeal the denial of their motion to dismiss to the US Court of Appeals for the Eighth Circuit. Plaintiffs, represented by Littler, are opposing the stay and preparing to file for summary judgment at the district court.

The newest of the lawsuits is in Illinois, where the Illinois Policy Institute amended its complaint Oct. 30 to add the Technology and Manufacturing Association as a plaintiff and add a labor law preemption claim.

Apart from the labor law issue, states must convince courts that their meeting bans don’t violate the First Amendment.

The mandatory nature of these meetings—requiring employees to listen to messages that aren’t job-related under threat of firing—helps their case that the laws are permissible, said Cathy Creighton, director of Cornell University’s ILR Buffalo Co-Lab and a former NLRB and union-side labor attorney.

“To compel someone to listen to speech is not free speech,” she said. “The other side of the free speech issue is the freedom to not listen to speech that you don’t want to listen to.”

10 States And Counting

Ten states have passed captive audience bans that specifically cover union-related meetings, stretching from California to Maine. More are likely to come in 2025, Lotito said.

Gov. Jared Polis (D) vetoed such a bill in Colorado this year, saying he would support banning mandatory anti-union meetings but had concerns about unintended consequences for religious and political organizations’ ability to communicate with their employees about job-related topics.

New Jersey lawmakers also are considering a bill in the waning days of their 2024 session that would add union-related messages to the topics covered by the state’s existing ban on mandatory meetings that cover political and religious issues.

Democratic-majority legislatures have passed nearly all of the state captive audience laws since 2022, following a memo that year from NLRB General Counsel Jennifer Abruzzo stating her position that the meetings violate workers’ federal labor rights.

Alaska became the lone red state to pass a captive audience meeting ban this month, when voters approved it as part of a broader ballot measure that also raised the minimum wage and mandated paid sick leave.