Season 1, Episode 9: Understanding the Captive Audience Ban

Host: Welcome to From Lawyer to Employer: A Shipman Podcast, bringing you the latest developments in labor and employment law, offering you practical considerations for your organization. You can subscribe to this podcast on Spotify, Apple Podcast, Google Podcast or wherever you listen. Thank you for joining us, and we hope you enjoy today's episode.

Gabe Jiran: Welcome back to From Lawyer to Employer: A Shipman Podcast. Once again I'm your host Gabe Jiran and I'm joined I think now for a third time by Jarad Lucan who's a labor employment lawyer here in our Hartford office. Good morning Jarad.

Jarad Lucan: Good morning Gabe. Thanks again for having me.

Gabe Jiran: Great to have you. So today we're going to talk about captive audience meetings that employers might have with their employees. This is an old labor concept that goes back probably decades and it's generally one of the tools that employers can use in union campaigns, but Jarad tell me what a captive audience is?

Jarad Lucan: Sure, so for at least 75, if not more years, employers under the National Labor Relations Act have had the ability to communicate with their employees about what they think are the downfalls of unionization - their opinion on unionization in a protected way. And the National Labor Relations Act doesn't specifically address captive audience speeches, but does make clear that employers can disseminate certain information, rented, printed or graphic information as it relates to their views on unionization so long as there's no threat or reprisals to their employees.

And so from that, the National Labor Relations Board for years has said that these meetings, these captive audience meetings, where employers are forced to go to a meeting, typically in a closed door situation are okay and don't violate the act and further the employer's free speech in terms of explaining to its employees why it thinks that unionization is bad. And so that's the overview of what we are talking about today.

Gabe Jiran: It sounds so sinister, the captive audience. You envision employees being locked in a room somewhere, and I guess they probably don't lock the door, but it is, generally what I've seen the employer brings the employees in to a meeting and makes them listen to some rhetoric on why they don't need a union.

I've seen it come up in initial union campaigns, but I've also seen it in de-certification petitions that get filed. And I think a key thing that you said was you can't have threats or flip side of that, and I actually have run into this you can't make promises either say, "Look, if you don't unionize, then we're going to give you raises." And so that's one of the limiters too.

Jarad Lucan: That is true. You can't give additional benefits to your employees for not unionizing. I think your point is key though, it’s about threats or reprisals, about unionization, right? Not necessarily whether you attend the meeting. At the moment, or at least until there's been some changes, but that we'll talk about, but at the moment you can discipline employees for not showing up to those meetings. And I think that's an important distinction between disciplining someone for failing to attend the meeting versus any threats or reprisals for not unionizing.

Gabe Jiran: That's an important distinction. So in these captive audience meetings, it can be a mandatory meeting. You have to come and you have to listen and then like you said, you could be disciplined for not attending. It's a fine point, because you're not saying, "Oh, if you're in favor of a union, we're going to discipline you." It's, you've got to come to this mandatory meeting. And if you don't, then there's going be some sort of issue. How often have you seen these captive audience meetings used?

Jarad Lucan: Not frequently, I would say at least in my past 15 years of practice, maybe once or twice to be perfectly honest.

Gabe Jiran: Yeah, I've seen it a couple times and it's always a question for the employer as to how that's going to be received by employees, sometimes I think employers, conclude that it's a little too much because it actually might send the wrong message.

Jarad Lucan: Sure.

Gabe Jiran: but I think it depends on the circumstances and any employer can choose which path they want to take. However, in Connecticut now there's a change. So, I understand there's some recent legislation taking effect here that might limit the employer's ability to have these captive audience meetings.

Jarad Lucan: Yes. So there's Senate bill 6163 that was passed. But just to give you little of a broader scope of what's going on - recently the general council on the National Labor Relations side had issued a memorandum saying that they would like to review. Or take a look at these captive audience speeches that we are looking at on a national level. And whether or not they do amount to unfair labor practices in that context. So there is at least a point of view from the general council at the National Labor Relations Act that these types of meetings where you're having these closed door meetings and mandating them, could violate the act despite these 75 years of precedent. And so that's going on in the background. There's a general council memo, it's not law yet, but it gives us an idea of where the National Labor Relations board may go if these cases come before them.

So with that going on, we have this new act that's going into effect in July of this year, where our statute that prohibits employers from disciplining and discharging employees for exercising their rights afforded to them by the first amendment or by the Connecticut constitution was amended. Our 31-51q statute that protects free speech for employees was amended, essentially expanding the scope of what the constitutional rights are that employees have.

The statute now protects the freedom of association, and the right not to have to be required to listen to certain speech. And so that is broader than the idea of  engaging in speech. Right now we have the right to not listen to certain speech - essentially what the act has done, is that it has made it illegal for employers to threaten or subject employees to discipline or discharge for refusing to attend a meeting, that's sponsored by an employer, to listen to its views on unionization, or communicate to its employees its opinion on any religious or political matters. And political matters are defined really broadly under the act, which include the decision to join or support any political party or civic community or fraternal or labor organization, so it's very clearly aimed at these captive audience speeches that you can't threaten, or subject employees to discharge or discipline for refusing to listen to that sort of speech in the workplace anymore.

Gabe Jiran: Yeah, I thought the statute's definition of religious or political matters was quite broad. Clearly it was meant to address the anti-union type of speech that occurs traditionally in these captive audience meetings. But it goes even further, and I don't really know if that was an attempt because of the political world that we live in - to make it even more expansive. I guess it makes sense if you're talking about the first amendment and the rights of employees to either speak or not to speak on something that you would define it as broadly as possible, but for our purposes, looking at the labor implications, clearly it's taking a stance contrary to the 70+ years that we've had at the federal level and I think that's interesting. So what happens though, under the statute, if an employer says, we're going to make our employees come to this meeting and if you refuse, we're going to discipline you, what are the consequences?

Jarad Lucan: Employers can be subjected to all sorts of damages for that, so if an employer requires someone to go to these meetings, under the pain of discipline and discharge, and they refuse to go and they get disciplined or discharged, they can get up to attorney's fees and file a claim. There can be punitive damages associated with that. And so I think that the employers really, at this point have to make a real, if they're going to have these kinds of meetings, Are these the best things to be doing? Clearly, you can't do it as of July one, unless there's a legal challenge to the statute, which I'm sure we'll talk a little bit about as well.

Gabe Jiran: It's an interesting stance. Instead of creating a whole new statute, they put this into 31-51q, which is basically the Connecticut state equivalent of the first amendment, that would apply to all employers in the state. So they're piggybacking off of the same concept. The current law says, "Hey, I can't discipline you for exercising your protected free speech." So, now it's just flipped and said, "We're also going to protect you from listening to the speech that we want you to under political and religious matters." I- I do see that there, on the religious side of things, that there's a carve out for religious entities. Obviously if you're in religious entity you're going talk to your employees about religion, that's not included, right?

Jarad Lucan: Yeah. There's a couple carve outs. One being the religious entities, one being that if you're an institution of higher education and you need to talk to your staff members or your professors about coursework, symposium, academic programs, that's a carve out; there's also carve outs for communications that are necessary for performing someone's job. So if you're talking to someone about what their job duties are and how they have to perform them, that's not going to run a field of the statute. Or if you have to communicate certain aspects of certain trainings that are required that sexual harassment training or OSHA trainings and things of that nature, that's not going to run a field of these statute either.

Gabe Jiran: Yeah. There's an interesting provision that it doesn't prohibit casual conversations between employees or between an employee and an agent representative or designee of the employer provided participation, and such conversations is not required. I don't know what they mean by casual conversations. Obviously you can't get everybody into a room and require that they come, but I think that still means that managers could be out there talking to employees and saying, "Hey, this is why we think you don't need a union or here are some things to consider.

I think you have to be careful about the line that you walk there for your employer, if you want to do that type of thing, but it does have this sort of non-coercive aspect where if you're just talking to employees and they're not required to engage in the conversation, then you could still do that. I think.

Jarad Lucan: Yeah, I don't disagree with that. I think that employers still have tools at their disposal and people are able to communicate with their employees about what they see as maybe the non-benefit, or the detriment of unionization. They simply can't do it in a way that is this captive meeting, right. They certainly can issue emails if they want to. They can have communications offline with folks on a one-on-one basis so long as it's not threatening and there's no promise of benefits and things of that nature, which we can never do as an employer. But I don't think that there's any wholesale prohibition on employers from at least communicating in a way that they think is appropriate short of these meetings, about what they see as probably a negative impact of unionization in the workplace.

Gabe Jiran: So, you alluded to a bigger issue perhaps on this, which is we do have this long history at the federal level. And now we have a state statute that's contrary to what we’ve been seeing in the past few years, this type of legislation has been considered by Connecticut, in that there's been an issue that's come up with a possible preemption of the statute under federal law. So just, preemption's a very complicated topic, so I'm not going to need, like the law school version... in summary, Jarad, what is the preemption issue?

Jarad Lucan: This is not the first version of this bill. It's the first version that got passed, but not the first version of this bill that's been going around in Connecticut. And so there have been other versions and there have been opinions from former attorney generals in Connecticut that have indicated that such a statute would be preempted by federal law, because of what we talked about. Essentially in the aspect of preemption, just to try to break it down as simple as possible, when we have an area such as labor law, which is clearly regulated by federal law, in terms of the National Labor Relations Act, then the federal government from a supremacy standpoint has taken that area and decided to regulate it, and so states can't come in and start changing that or taking over, which is an area regulated by the federal government.

And if it's not specifically regulated, then whether it was left open to the sort of free marketplace is another area to talk about. And so previous versions of this bill didn't look at amending 31-51q, but looked at creating a whole new statutory scheme in order to protect employees or what they see as protecting employees' rights, not to listen to speech or go to these meetings. And for those reasons, there were former opinions from former attorney generals in Connecticut that thought that type of statutory scheme would be preempted by federal law. Cut to where we are today, where the general assembly has now amended a current state statute, 31-51q, which provides employees with rights, not only under the federal constitution, but under our state constitution as well, to make clear that those rights include the ability not to listen to certain speech.

And there is broad policing power or broad power by states to regulate some of the conduct of its citizens and employees and in the employment world, like child labor laws and things of that nature, that the current attorney general has indicated that this statute wouldn't be subject to the same flaws that previous bills would fail for in terms of preemption. That's the opinion of the attorney general. I don't know if that's what's going to be the case, if a court ever sees this. And that, as I indicated before, leaves employers in the stance of, do you want to be the employer that challenges this statute? Do you want to force your employees into a captive audience to get this matter before a court to say it's preempted by federal law or not? That's a decision that each employer would have to make on its own.

Gabe Jiran: As I mentioned before, I think it was, somewhat clever of the legislature to put this into the existing statute for the reasons you just said. And I think it's unsettled, even in our current attorney general's opinion. In one of the last lines it says, that it's unsettled so we'll have to see what happens. But in any case, I think that now, under the premise of preemption, it is that federal law is governing here and the states can't swoop in and do something contrary to federal law.

Here by using an existing state law, it could be viewed or argued that it's just an expansion of rights under applicable state laws, which is expanding rights beyond what the federal law provides. And that's okay because, state laws can provide more generous provisions than federal law and not be contrary. And it'd be interesting to see how this plays out. This all may be academic because we may see the National Labor Relations Board come out with something that says that you can't do captive audience meetings anyway. And then it will be left for the next NLRB to do something different and see where that fight goes.

But in the interim, you know, the employers in Connecticut, at least as of July 1, shouldn't be having captive audience meetings because there's a risk there and-

Jarad Lucan: Yep.

Gabe Jiran: ... 'Cause I think you said, "do you want to be that test case" most of our clients don't want to be the test case, but I'm sure there will be one out there someplace and so we'll have to see how that develops. Okay. I think that wraps up our discussion of this matter. Clearly we're going to watch this and if there are further developments we'll have Jarad back to talk more about it, but for now we're going to sign off.  Thank you.

Jarad Lucan: Thank you very much.

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