United States: New York's New Prohibition On Captive Audience Meetings Adds To Growing Trend

On September 6, 2023, Governor Kathy Hochul signed a bill banning mandatory captive audience meetings, amending Section 201-d of the New York Labor Law. The law, which took effect immediately, prohibits employers from requiring employees to attend meetings or listen to communications that have the primary purpose of sharing the employers' thoughts concerning religious or political matters. The law does not apply to supervisory or managerial employees.

The law defines "political matters" as those "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." Accordingly, "political matters" include matters related to union elections and joining and supporting unions. Employers may not discriminate against employees who refuse to attend meetings or listen to communications regarding such topics, whether or not a campaign is ongoing. While the law is restrictive, it does not prohibit employers and employees from engaging in nonmandatory casual conversations concerning religious or political matters.

The law also includes a posting requirement, which obligates employers to post a sign in the workplace informing them of their rights under Section 201-d of the New York Labor Law.

An employer may face the following penalties for violating the law: (1) the state attorney general may apply to enjoin or restrain the employer from committing additional violations and the court may then impose a $300 civil penalty on the employer for the first violation and $500 for each subsequent violation; and (2) aggrieved individuals may file a claim for equitable relief and damages.

Possible NLRA Preemption of the New York Law

The federal National Labor Relations Act (NLRA) provides employer speech protections derived from the constitutional right to free speech, as embodied in Section 8(c) of the act. It allows employers to express or disseminate "any views, argument, or opinion... [that do not include a] threat of reprisal or force or promise of benefit." The New York law appears to violate NLRA Section 8(c), as it prohibits certain employer free speech rights by prohibiting communications about its union sentiments at captive audience meetings during paid working time. A state law may be preempted under the supremacy clause of the United States Constitution when it interferes with federal law. Accordingly, if challenged, a judge may very well determine that the New York law is preempted by the NLRA, as the New York law can be viewed as violative of employers' right to free speech.

General Counsel's Assertion that Captive Audience Meetings Are Unlawful Under the NLRA

While the NLRA arguably preempts the New York law, General Counsel Jennifer Abruzzo is actively working to overturn over 75 years of National Labor Relations Board (NLRB) precedent, by taking the position that employer captive audience meetings―a commonplace vehicle utilized by employers to espouse their views about unionization―violates the NLRA. In April 2022, Abruzzo released Memorandum GC 22-04, entitled "The Right to Refrain from Captive Audience and other Mandatory Meetings," rejecting the NLRB's longstanding decision in Babcok v. Wilcox Co., 77 NLRB 577 (1948), holding that "compulsory audience" meetings on company property during work time were permissible. Since that time, captive audience meetings have been routinely utilized by employers trying to combat union organizing campaigns. Abruzzo, who in her role determines whether a complaint is to be issued in response to an alleged violation of NLRB policy, stated in Memorandum GC 22-04 that captive audience meetings are unlawfully coercive under the NLRA and must be found by the NLRB to be unlawful. The NLRB has not yet issued any rulings on this subject.

Other States with Prohibitions on Captive Audience Meetings

Connecticut, Maine, Minnesota and Oregon each have a law restricting use of captive audience meetings, three of which were enacted in the last year and a half. California and Vermont employers may also soon need to grapple with a ban on captive audience meetings, as both states currently have bills under consideration by their legislatures on this topic.

Wisconsin's attempt at implementing a captive audience law, which was nearly identical to the New York law, was unsuccessful. Following a lawsuit against the governor of Wisconsin and the secretary of the Wisconsin Department of Workforce Development, the parties entered into a stipulation and the court entered judgment on the stipulation, holding that the captive audience legislation is preempted by the NLRA under the supremacy clause. The court enjoined Wisconsin state agencies from enforcing the captive audience legislation. See Judgment in a Civil Case, Metro. Milwaukee Assoc. of Com. v. Doyle, No. 2:10-cv-00760-CNC (D. Wisc. Nov. 15, 2010), ECF No. 6.

The Connecticut law banning captive audience meetings was recently challenged in a federal lawsuit filed by the U.S. Chamber of Commerce, which alleged that the Connecticut law is preempted by the NLRA. The court denied the state commissioner's motion to dismiss, so it remains to be seen if Connecticut's captive audience law will have the same fate as Wisconsin's law.

What This Means for Employers

At this time, it is unknown if New York's law will be challenged and what its fate may be if it is. As such, employers may choose to play it safe and avoid captive audience meetings in favor of: (i) voluntary meetings where employees are given the express option not to attend; (ii) informal discussions that an employee is free to join or walk away from; and (iii) communications by other noncoercive means, such as email, postings and distributions. Employers should also educate supervisors about the new prohibitions on captive audience meetings and modify existing policies to include these restrictions. Employers should also post the required notice advising employees about their rights under Section 201-d of the New York Labor Law.

Alternatively, employers may determine that expressing their views under NLRA Section 8(c) in captive audience meetings is paramount in a union election setting and, therefore, be willing to fight any efforts by New York state under the new law or the NLRB pursuant to General Counsel Abruzzo's pronouncement to challenge their actions on the grounds of their right to free speech.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, Liran Messinger, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

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