Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On April 29, 2022, organized labor achieved a long-sought political objective when the Connecticut House of Representatives passed Senate Bill 163, “An Act Protecting Employee Freedom of Speech and Conscience.” Effective July 1, 2022, this legislation outlaws mandatory employer-sponsored meetings, often referred to by unions as “captive audience” meetings, which unions argue are major deterrents to labor organizing. If as expected the bill is signed by Governor Lamont, Connecticut will join Oregon as the only states with bans on employer-sponsored meetings.
Senate Bill 163 amends Conn. Gen. Stat. § 31-51q, an existing statute that authorizes damage suits against employers that subject employees to discipline or discharge for the exercise of rights protected under the First Amendment of the U.S. Constitution or the counterpart provisions of Article I of the Connecticut Constitution. Senate Bill 163 will now amend the statute in these ways with respect to employer meetings:
- Modify the definition of the scope of the constitutional rights protected by the statute to include “the right of freedom of speech, freedom of religion and freedom of association, and shall include the right not to be required to listen to speech.”
- Impose liability on employers who violate an employee’s constitutional rights, including subjecting or threatening to subject employees to discipline and discharge for refusing to attend an employer-sponsored meeting or to listen to or view employer communications, if the primary purpose of that employer speech is to “communicate the employer’s opinion on religious or political matters.”
- Define political matters as “matters relating to elections for political office, political parties, proposals to change legislation, proposals to change regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization.”
- Describe certain exceptions to these bans, such as communications necessary for employees to perform their job duties, certain communications at issue in higher education, casual conversation and communications limited to managerial and supervisory employees.
Legal Background & Prior Opinions from the Attorney General
Efforts by union supporters in Connecticut to ban employer-sponsored meetings in the past have been sidelined by legal questions. In 2011 the Connecticut House of Representatives passed a bill prohibiting employers from requiring employees to attend meetings whose main purpose was to discuss religious or political matters. Then-Attorney General George Jepsen informed the legislature that the ban would be preempted by federal law because a ban on employer-sponsored meetings would interfere with the exclusive jurisdiction of the National Labor Relations Act (NLRA). When the legislature again considered such a ban in 2018, Jepsen issued a formal Advice Letter reiterating his belief that a ban on employer-sponsored meetings would be preempted by federal law.
Jepsen’s successor as Attorney General, William Tong, a former state legislator, reversed course in 2019, announcing his approval of a different approach to banning employer-sponsored meetings. In 2019 the Connecticut Senate considered two bills that sought to prevent employers from conducting employer-sponsored meetings. The first, Senate Bill 64, was substantially identical to the bill that then-Attorney General Jepsen said in his 2018 Advice Letter would be preempted. Attorney General Tong conceded that Senate Bill 64 would likely be preempted by federal law.
By contrast, Tong approved the second bill, Senate Bill 440, which sought to ban employer-sponsored meetings by amending Conn. Gen. Stat. § 31-51q. Tong distinguished this approach from the creation of an entirely new statute banning employer-sponsored meetings, which he and Jepsen both found improper. Inasmuch as Conn. Gen. Stat. § 31-51q already imposed liability on employers that discipline or discharge employees for the exercise of First Amendment rights, Tong reasoned that the legislature’s expansion of such rights to include avoiding employer speech would not interfere with federal regulation of labor relations through the NLRA. Senate Bill 163, passed by the General Assembly this year, is substantially identical to Senate Bill 440 from 2019.
Analysis of 2022 Legislation and Implications for Employers
Senate Bill 163, hotly contested during the legislative session, was denounced by Connecticut Republicans and the Connecticut Business and Industry Association (CBIA). The president of the CBIA said in a press release issued May 1, 2022 that Senate Bill 163 is “[n]ot only … preempted by federal law, [but] shows a complete lack of focus by policymakers on the key challenges facing the state’s economy and its job creators." CBIA contends that the new law would make Connecticut less desirable and competitive as a place to do business. Legal and political challenges to the ban on employer-sponsored meetings seem very likely if Governor Lamont signs the bill.
In a related national labor development, Senate Bill 163 was passed shortly after NLRB General Counsel Jennifer Abruzzo announced that she will urge the Board to rule that employer-sponsored meetings violate the NLRA itself, an interpretation she said is “necessary to ensure full protection of employees’ statutory labor rights.” Such a ruling would work a substantial change in longstanding federal labor policy by limiting free speech rights of employers embodied in Section 8(c) of the Act1 and reversing the Board’s approval of employer-sponsored meetings in its 1948 decision Babcock & Wilcox Co.2
In light of the unresolved questions about the legality of Senate Bill 163, employers confronting union organizing may be forced to choose whether to challenge the new law based on federal preemption or to comply with it, thereby chilling their own free speech rights. Despite questions about the legality of Senate Bill 163, employers should plan how they will manage under its ban on employer-sponsored meetings. Unless the new law is overturned in court, discipline or discharge that violates the expanded view of First Amendment rights in Conn. Gen. Stat. § 31-51q could result in litigation, legal costs and potentially large damage awards against employers, since § 31-51q establishes a private right of action for affected employees to recover the full amount of lost compensation, together with attorney’s fees and litigation costs, for any discipline or discharge that violates employee rights.
Employers faced with union organizing drives or other situations that would ordinarily prompt them to conduct mandatory meetings of employees should consult with counsel about whether to hold such meetings, the risks of discussing particular topics and steps that might mitigate such risks. They should also consider strategies for how to handle refusals by employees to attend such meetings and any disruptions by attendees. Employers should keep in mind that bans on discipline and discharge for refusing to attend meetings apply not only to labor campaigns and related topics, but also to other political, civic, community, or fraternal organizations and issues. For example, employers accustomed to briefing employees on legislative matters that affect the business and encouraging them to lobby their representatives may conclude that such meetings are technically as problematic as the alleged “union busting” meetings targeted by supporters of the new bill.
Littler’s Workplace Policy Institute (WPI) is closely monitoring the situation and evaluating the merits of a legal challenge. We will follow legislative developments and provide updates on Senate Bill 163 and its implications for Connecticut employers if and when it is signed into law by Governor Lamont.
1 29 U.S.C. § 158(c). (“The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.”)
2 77 NLRB 577 (1948).