New York State's Legislature recently passed a bill that, once signed by Gov. Kathy Hochul, will effectively prohibit employers from holding mandatory employee meetings for the purpose of discussing labor elections and union organizing. These meetings are often referred to as "captive audience" meetings. New York is poised to join a growing list of states that ban this common employer practice. After the governor's signature, which is expected, the law will take effect immediately. New York employers — especially employers without unionized labor — should prepare now for the new union organization rules that will soon be here.

What Are "Captive Audience" Meetings?

Seventy-five years ago, the National Labor Relations Board ("NLRB") held in Babcock v. Wilcox Co., 77 NLRB 577 (1948) that employers may hold mandatory employee meetings on company property and during working hours to address issues related to union organizing. Following Babcock, these "captive audience" meetings have since become standard practice for employers to express their views to employees on union organizing and the ramifications that unionization could have on the workforce. As employer speech is otherwise highly restricted during periods of union organization, captive audience meetings are often one of the best tools for employers to dispel misconceptions about union membership and convey to employees why they may want to consider voting against joining a union.

What Does the Proposal Say?

The proposed law will make it a violation of state labor law for an employer to discriminate against an employee because of an employee's refusal to attend an employer-sponsored meeting, listen to employer speech, or view employer communications when the primary purpose is to communicate the employer's opinion concerning religious or political matters. "Political matters" is defined under this statute to include matters relating to labor organization or elections. Additionally, employers will be required to post signage informing employees of their rights under New York Labor Law Section 201-d.

Federal Challenges

New York is following the trend set by Connecticut, Oregon, Minnesota, and, most recently, Maine — all states that have banned captive audience meetings. Vermont has current legislation pending that would similarly follow suit. However, whether states can restrict employer free speech in this context is currently an unsettled question. In 2020, the NLRB filed suit against Oregon, alleging that its law banning captive audience meetings was preempted by the National Labor Relations Act (NLRA). The United States District Court for the District of Oregon dismissed the complaint, as it found the NLRB lacked sufficient standing. NLRB v. Oregon, No. 6:20-cv-00203-MK, 2021 U.S. Dist. LEXIS 184388 (D. Or. Sept. 27, 2021). The appeal was subsequently withdrawn following the change of presidential administrations after the 2020 election cycle — a relatively common occurrence when a new party takes control of the executive branch. However, after a similar law was passed in Connecticut, a similar lawsuit was filed by the United States Chamber of Commerce also challenging the law as preempted by the NLRA. Chamber of Com. of the U.S. of Am. et al. v. Bartolomeo et al., 3:22-cv-01373-KAD (D. Conn. filed Nov. 1, 2022). That lawsuit is ongoing. It may become a litmus test for other state law bans on captive audience meetings.

Make no mistake, though, the current NLRB wants captive audience meetings banned. As we previously covered, the NLRB General Counsel issued a memo in April 2022 calling for the abolition of captive audience meetings, and actively seeking a test case for which to overturn Babcock. While the NLRB has not yet officially overturned its precedent, it is evident that captive audience meetings are being scrutinized closely.

Employer Implications

After Governor Hochul signs the bill into law, New York employers will need to rethink their methods for communicating their views on union membership to their employees. Below are some suggestions employers should consider now before the bill becomes law:

• Hold mandatory meetings with employees now about the realities of union membership, before captive audience meetings are prohibited in New York.
• Consider voluntary meetings at the worksite where the employer may express its opinions about union membership to employees who voluntarily elect to attend the meeting.
• Revise anti-retaliation policies to prohibit retaliation for an employee's refusal to attend a meeting about union organization.
• Retrain managers and supervisors on the changes to the law with specific instructions on the voluntary nature of any meetings, to ensure that their actions would not be seen as coercive or intimidating.
• Contact experienced labor counsel to ensure compliance with all changes to the labor law.