Seyfarth Synopsis: On September 6, 2023, New York Governor Kathy Hochul signed into law legislation that, effective immediately, prohibits employers from disciplining employees who refuse to participate in meetings concerning their employers' religious or political views, including on unionization.
Earlier this month, New York enacted legislation (S4982/A6604) amending New York Labor Law Section 201-d to prohibit discrimination against non-managerial and non-supervisory employees who opt out of employer-sponsored meetings the “primary purpose” of which is to communicate an employer’s political or religious opinions. Employees’ refusal to otherwise view communications or listen to speech intended to communicate an employer’s political or religious opinions are similarly protected by the new law, which took effect immediately upon Governor Kathy Hochul’s signature on September 6, 2023.
With the primary goal of the legislation seemingly aimed at eliminating mandatory so called “captive audience meetings” during which employers attempt to provide employees with information and opinions about joining a union, the law explicitly defines “political matters” to include matters relating to the decision to join a labor organization. This definition is noteworthy (if not oxymoronic) given that unions exist solely to bargain their members’ terms and conditions of employment with employers (a task that is decidedly not political). New York’s law even notes that “casual conversations” between employees or employee and employer are not prohibited, so long as participation in those conversations is voluntary.
New York joins a small but growing list of states that are enacting legislation to ban mandatory captive audience meetings, including Maine and Minnesota, while a number of others are considering it. At the same time, the National Labor Relations Board’s (NLRB) General Counsel, Jennifer Abruzzo, is pursuing the reversal of decades of precedent at the NLRB protecting “captive audience” speeches on the theory that they are inherently coercive. The purpose of the various statutes and Abruzzo’s efforts seems clear – to provide further political assistance to unions, who are heavily involved in politics and lobbying, being among the largest contributors to political campaigns. Thus, to this extent, perhaps it really is political.
The law empowers the Attorney General to apply to enjoin or restrain an employer from continuing to violate the law and allows for the imposition of civil penalties on the employer of $300 for an initial violation and $500 for each subsequent violation.
In light of Section 8(c) of the National Labor Relations Act (NLRA), which allows for the expression of views without threat of reprisal or force or promise of benefit, and employer First Amendment free speech rights, the legal validity of New York’s ban on mandatory captive audience meetings is to be determined. When a similar law in Wisconsin was challenged in 2010, Wisconsin settled the case and conceded such a ban on captive audience meetings was preempted by the NLRA. As of the publication of this article, there is a federal suit pending in Connecticut seeking to invalidate a similar law there, again on grounds that the law is preempted by the NLRA and violates employer free speech rights.
Putting union issues to the side, these “captive audience” laws and the current NLRB stance raise the likelihood of other potential flashpoints. Although making clear that New York’s version of the law does not give employees the option to withdraw from legally required employer meetings (for instance, harassment training), one can expect that what will result to some degree is that employees will assert the right (whether they are correct or incorrect) to sit out from all kinds of mandatory employer meetings. This in turn will inevitably lead to discipline, which will then lead to retaliation claims. For now, employers are required to post workplace signs informing employees of these new freedoms under New York Labor Law Section 201-d.
In terms of how to deal with this law and its impact on union communications, one approach may be to simply invite (not require) employees to attend the meeting to listen and be paid. Those employees who refuse to attend are highly unlikely to be persuaded in any event. And, of course, by just observing attendance, the employer might have a better measure of union support than may otherwise be gained from supervisors. Also possible is that the union might tell employees not to show up. In a union campaign where employers are looking for talking points, this one might stand out. Indeed, if a union gives orders to employees before it even represents them, what will occur if they are voted into representational status?
Finally, we are hard-pressed to recall any employer having a mandated religious or politically themed meeting (religious institutions would still be permitted to do so under this new law). Those topics appear to be window dressing for the law’s real purpose – making captive audience meetings about unionization taboo. It is difficult to imagine that even the legislative proponents of the law believe it to be enforceable.
Seyfarth will continue to monitor and provide updates on developments in this space, including any potential legal challenges to the new legislation. In the meantime, please feel free to reach out to the authors of this alert – or your regular Seyfarth contact – if you have any questions. This topic touches on employment counselling, our Labor Management Relations Practice Group, and also our newly formed “Navigating Cultural Flashpoints” Task Force.