Recently, the Connecticut General Assembly sent Public Law No. 22-24 (Senate Replacement Bill 163), “An Act to Protect Employees’ Freedom of Speech and Conscience,” to the Governor’s office. Ned Lamont for signing. It’s unclear what action the governor plans to take on the law.
If signed into law, effective July 1, 2022, the law will amend the Connecticut, Conn. Employee Free Speech Act. Gen. Stat. Section 31-51q, severely limiting an employer’s ability to speak directly with their employees. Most notably, the law prohibits employers from requiring employees to attend meetings to discuss “political matters,” a term that includes “the decision to join or support any … labor organization.” The provision aims to prohibit what unions often call “captive audience meetings”, where employers inform employees of their rights under the National Labor Relations Act (NLRA), often as part of campaigns unions.
The law also expands the parameters under which a civil action can be brought. Under 31-51q, employees can sue for damages when they are “disciplined or fired” for exercising their free speech rights under the First Amendment. the United States Constitution and the Connecticut equivalent, subject to certain exceptions. The amendments expand that right of action, allowing civil action for “threats” of disciplinary action or dismissal, ostensibly even if those threats do not result in adverse employment action.
The War on Captive Audience Meetings
Under the NLRA, employees have the right to form, join and attend trade unions, and to bargain collectively with their employers. The NLRA also prohibits employers from interfering with, restricting or coercing employees in exercising these rights.
For more than seventy years, the National Labor Relations Board (NLRB) has recognized that employers have the right under the NLRA to require their employees to attend meetings to discuss their rights. statutory rights, including the right of employees to refrain from forming unions. These meetings often include training on the union election process, the legal implications of forming a union, and a discussion of the impact of union recognition on the exchange of information and ideas between the employer and the employee. These meetings arguably allow employers to tell their side of the story, share factual information with employees about their rights under the NLRA, and balance the arguments made by unions in campaign efforts. Over the years, the NLRB has issued rulings clarifying what an employer is allowed to discuss at these meetings, including prohibitions on engaging in inappropriate threatening or coercive language in violation of the NLRA.
In late July 2021, the US Senate confirmed Jennifer Abruzzo as general counsel for the NLRB. The vote was 51 to 50, with Vice President Kamala Harris voting in the event of a tie. Abruzzo was previously special adviser for strategic initiatives for the Communications Workers of America, the largest media and communications union in the United States. She has also held various positions within the NLRB. Since assuming her current position, Abruzzo has been a strong supporter of expanding organized labor rights.
On April 7, 2022, Abruzzo issued Memorandum GC 22-04, titled “The Right to Abstain from Captive Hearing and Other Compulsory Meetings”. In this note, Abruzzo took the position that “the [NLRB] years ago erroneously concluded that an employer is not violating the [NLRA] by forcing her employees to attend meetings at which she gives speeches urging them to reject union representation.” She also said in the memo that “[f]requiring employees to listen to such employer speech on pain of disciplinary action…clearly chills employees’ protected right to refrain from listening to such speech in violation of Section 8(a)(1) [of the NLRA]According to the Abruzzo memo, NLRB regional offices have begun filing complaints against employers for holding mandatory meetings to discuss unionization with employees.
Overview of legislation
In several respects, Connecticut’s modifications are consistent with the arguments made by Abruzzo in memorandum GC 22-04. Public Law No. 22-24 generally prohibits employers from subjecting or threatening to subject employees to “disciplinary action or dismissal” for the following behaviors:
- Exercise “the rights guaranteed by the First Amendment to the United States Constitution or Section 3, 4, or 14 of Section 1 of the State Constitution [of Connecticut]provided that such activity does not substantially or materially interfere with the employee’s good faith job performance or with the employment relationship between the employee and the employer.”
- Refuse “to attend any Employer-sponsored meeting with the Employer or its agent, representative, or delegate, the primary purpose of which is to communicate the views of the Employer on religious or political matters”, or “d ‘listening to speeches or seeing communications, the main purpose of which is to communicate the opinion of the employer on religious or political matters’
The law defines “[p]political matters” such as “matters relating to elections for political office, political parties, proposed changes to legislation, proposed changes to regulations and the decision to join or support any political party or organization political, civic, community, fraternal or trade union”. “[r]religious matters” such as “matters relating to religious affiliation and practice and the decision to join or support any religious organization or association”.
Public Law No. 22-24 does not prohibit “informal conversations between employees or between an employee and an agent, representative or delegate of an employer, provided that participation in such conversation is not required”. The term “casual conversations” is not defined and the legislation provides no guidance on how an employer can or should regulate such conversations with employees.
The law allows employees to sue employers for alleged violations. Employees can seek various damages, including “the full amount of gross lost wages or compensation, with costs and reasonable attorneys’ fees allowed by the court.”
Key points to remember
Public Law No. 22-24 is likely to face a legal challenge, including on the grounds that it is preempted by the NLRA. If passed, the legislation will have an immediate impact on organizing efforts in Connecticut. Among other things, Connecticut employers will likely be called upon to weigh the risks of engaging in mandatory meetings and consider how to limit exposure to a potential lawsuit alleging a violation of Section 31-51q.
Employers may want to be aware of the newly expanded free speech rights afforded to employees. For example, many employers maintain social media policies or other workplace rules governing employee conduct, which address permitted speech. Employers may want to review these policies and rules to analyze whether they could be construed as a threat to employees engaging in constitutionally protected speech or otherwise expose a company to liability under Section 31-51q.
Finally, employers may wish to be aware that the restriction against requiring employees to attend meetings whose primary purpose is to discuss political or religious matters could include speeches on the state of affairs, where the presence is required and current events are discussed.
Ogletree Deakins’ office in Stamford will continue to monitor and report on developments regarding Public Law No. 22-24 and will post updates to the company’s Connecticut and Traditional Labor Relations blogs as they occur. that additional information will become available. Important information for employers is also available through the firm’s webinar and podcast programs.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.