Employers Banned From Pushing Politics Under Emerging State Laws

Bans on mandatory workplace meetings where managers opine about politics, religion, and unions are close to spreading into California, in a blue-state trend that’s driven by labor supporters yet also restricts bosses looking to influence how employees vote in November.

More than a half dozen states including New York have recently enacted bans on what unions and worker advocates often call “captive audience meetings.” Three face litigation from business groups claiming the laws infringe on employers’ First Amendment rights to communicate freely with their workers.

The captive audience laws add another wrinkle to the decades-old legal questions over how actively employers engage with workers on both politics and unions. The matters are often intertwined, and that’s particularly true in an election year when the vocally pro-union President Joe Biden is set to be replaced by either his second-in-command Kamala Harris or his Republican predecessor Donald Trump.

Under Biden’s administration, the National Labor Relations Board’s chief lawyer Jennifer Abruzzo has taken the position that captive audience meetings violate federal labor law. Management-side lawyers say that contradicts decades of case law.

The political and union “concerns are linked and related,” said Jennifer Sherer, who leads the Worker Power Project at the Economic Policy Institute. “The vast majority of workers are in a position where if they decline an employer request, even if it’s something that might seem outlandish” such as attending a political candidate visit to the workplace or a Bible study, “most workers have a reasonable fear that could come with some consequence.”

Employers historically have been free to talk to their workers, including in mandatory meetings about unions and politics, said Michael J. Lotito, co-chair of Littler Mendelson PC’s Workplace Policy Institute, whose colleagues represent the business groups challenging Minnesota’s ban on captive audience meetings.

The mandatory meeting bans are “so obviously intrusive, so obviously against fundamental First Amendment principles,” he said.

“Employers, especially when people are on the clock, I would argue should have the right to speak to their employees, and they speak to their employees all the time,” Lotito said.

The political matters prohibited from mandatory workplace discussions include those on elections for public office, political parties, and the decision to join political, civic, community, or labor organizations.

The California legislation (SB 399) is awaiting Gov. Gavin Newsom (D), who faces a Sept. 30 deadline to sign or veto it. His counterpart in Illinois, Gov. JB Pritzker (D), signed a mandatory meeting ban on July 31, whereas Colorado Gov. Jared Polis (D) vetoed a similar measure in May citing concerns over unintended consequences for political and religious organizations.

Political Division

The captive audience laws are just one of many considerations for employers figuring out how to manage political talk and activism in the workplace. Nearly 20 states have laws restricting employers’ ability to coerce or penalize their employees for how they vote, and those span the political spectrum from blue California to red Mississippi.

The deeply divided political atmosphere raises the likelihood of conflict among employees during an election season, but the challenges escalate into legal risks whenever managers attempt to persuade workers to back their preferred candidates, said Jennifer B. Rubin, an employment lawyer and co-chair of the ESG practice at Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo PC.

“Sometimes managers don’t really understand where they sit in the universe when it comes to the individuals who report to them,” she said, given that the managers set their pay and make promotion and termination decisions.

When a manager talks to their employees about voting for a particular candidate, “you are potentially in the realm of violating the law,” depending on the state, Rubin said.

Nonetheless, those conversations happen. Local and state chambers of commerce along with national advocacy groups such as BIPAC offer consulting and campaign help to employers that want to rally their employees around a political cause or candidate.

One in four US workers reported having some contact from their employer regarding politics, according to a 2015 survey by then-Harvard researcher Alexander Hertel-Fernandez, while a fifth of those contacted said the messages pertained to presidential candidates.

Once these conversations veer into “mandatory” status, they risk violating both state laws limiting employers’ coercion over politics and the new breed of captive audience meeting bans.

Litigation Moves Forward

The issue of employers talking to their staff about non-union political issues is the focus of at least one lawsuit challenging a recent state ban.

The Illinois Policy Institute, a nonprofit group that advocates for legislative and regulatory proposals, sued in August to challenge the state’s new ban on captive audience meetings on First Amendment grounds. The institute says it needs to be able to talk with employees about policy topics, because they’re central to the group’s mission and operations.

“It makes it illegal for them to have mandatory meetings about policy, which is in their name,” said Jeffrey M. Schwab, an attorney with the Liberty Justice Center who is representing the institute.

“That would also apply to other organizations, say the ACLU, if the ACLU had mandatory meetings about policy that they opposed or thought was a violation,” he said. “That just seems crazy, and of course it’s also unconstitutional.”

Illinois officials haven’t yet filed a brief in response to the lawsuit. Officials in the Connecticut and Minnesota litigation have countered similar claims by noting the captive audience laws have various carveouts, such as allowing mandatory meetings on political topics if they’re necessary for the employees’ job duties.

But employers such as the Illinois Policy Institute still would have to defend themselves against an enforcement action or legal claim and try to convince a court that the meeting topics met that exemption, Schwab said.

“It’s going to mean that you’re not going to actually engage in the speech. It chills speech really,” he said.

The Minnesota captive audience meeting ban challenge has survived a motion to dismiss, which Judge Katherine M. Menendez denied in a ruling from the bench Sept. 16 in the US District Court for the District of Minnesota.

The plaintiffs, including the Minnesota Chapter of Associated Builders and Contractors and the National Federation of Independent Business, are ready to move for summary judgment in the case, Lotito said.

Shortly after being announced as Harris’ vice presidential running mate, Minnesota Gov. Tim Walz (D) cited his state’s passage of pro-union laws during remarks to a government employees union meeting. His statements were noted by organizations suing over the captive audience law in court filings, where they argued that its enforcement would chill businesses’ free speech rights if allowed to stand.

“We banned those damn captive audience meetings for good in Minnesota,” Walz told members of the American Federation of State, County and Municipal Employees.

He previously told a union gathering in April, “You go to jail now if you do that in Minnesota because you can’t intimidate people.”

The jail threat was “an incorrect statement of law from Governor Walz, who is not a lawyer,” the state’s attorneys said in their motion to dismiss the case.

Although the captive audience laws cover a wide range of political and religious topics, the primary goal for their supporters remains limiting anti-union messaging from management, Schwab said.

“When they pass these state laws, they can’t explicitly say that it bans these meetings about unions because it would be preempted by federal labor law,” he said. “That’s why they make it broad.”