Illinois joins a growing list of states prohibiting employers from requiring employees to attend meetings discussing union representation issues.

Here’s the scene: President Truman is seeking reelection, and Miracle on 34th Street just snagged three Academy Awards. The Minneapolis Lakers are celebrating their win in the National Basketball League championship (in the team’s inaugural season, no less), and a couple joyfully welcomes their new baby boy, Al Gore. It’s 1948. In Washington, D.C., the National Labor Relations Board (NLRB) affirms that employees’ interest in making informed choices about unions is best served when employers are permitted to present their viewpoint in employee meetings. That is how long the NLRB and courts have upheld employers’ right to hold mandatory meetings – often referred to as “captive audience” meetings – with employees for the purpose of discussing union representation.

Now, picture this: a wave of state legislation prohibiting mandatory employer-sponsored events is proliferating nationwide, and the NLRB’s General Counsel – the agency’s chief prosecutor – has announced her intent to ask the NLRB to overrule its 1948 ruling, and thereby seven decades of precedent, regarding such meetings. Illinois Governor J.B. Pritzker just signed into law a ban on Illinois employers holding mandatory meetings with employees, asserting that these meetings coercively interfere with employee freedom of speech. Welcome to 2024.

Illinois’ Senate Bill 3649

On July 31, Governor Pritzker signed into law Illinois Senate Bill 3649, also known as the Worker Freedom of Speech Act (“SB 3649” or the “Act”), effectively banning employers from holding mandatory meetings with employees concerning, among other issues, union representation.

SB 3649 is slated to go into effect on January 1, 2025. That said, the new law is facing legal challenges out of the gate, with the Illinois Policy Institute already alleging that enforcement of the Act violates the First Amendment. Similar legislation has failed legal scrutiny before. For instance, a district court in Florida permanently enjoined the enforcement of a law barring employers from holding mandatory meetings endorsing certain views the state found offensive. However, similar laws are currently in effect in Connecticut, Hawaii, Maine, Minnesota, New York, and Oregon.

The Act’s stated legislative intent is to protect employees from employer intimidation tactics, acts of retaliation, discipline, or discharge for choosing not to participate in employer-sponsored meetings designed to communicate the employer’s position on “religious or political matters.”

“Political matters,” as defined in SB 3649, include an employee’s decision to join or support a labor organization, placing employer-sponsored meetings about unions directly in its scope. An employee’s attendance at an employer-sponsored meeting must be “voluntary,” meaning attendance was not “incentivized by a positive change in any employment condition” and not “taken under threat of a negative change in any employment condition.” Accordingly, the law prohibits employers from offering incentives or imposing discipline to influence an employee’s choice to attend a meeting or to receive information from the employer regarding its opinion on religious or political matters.

The Illinois Department of Labor (“IDOL”) is tasked with addressing complaints brought under the Act. If an employer is alleged to have violated the Act, it has 30 days after receiving notice to contest or cure the alleged violation. The IDOL has 180 days to resolve the contest-and-cure period or to issue a right to sue letter. If the IDOL does not issue a right to sue letter, and the parties have not extended the time to cure the violation and resolve the complaint, a civil action may be initiated.

Available remedies include injunctive relief, employee reinstatement, back pay, reestablishment of any employee benefits, reasonable attorneys’ fees, and any other appropriate relief deemed necessary by the court. In addition, the Act provides for a civil penalty of $1,000 for each violation, enforceable by the IDOL.

State Legislation on Mandatory Employer-Sponsored Events

Illinois now joins several states which have passed legislation aimed at muzzling employers’ ability to communicate with their employees about unions.

Prior to 2022, only Oregon banned captive audience meetings (which, notably, has survived multiple legal challenges, including a 2020 challenge from the NLRB). Since then, Connecticut, Hawaii, Maine, Minnesota, and New York have enacted similar laws. On June 6, a new law banning captive audience meetings went into effect in Washington State. And, although Colorado’s Governor vetoed a similar bill this year, Vermont’s Governor recently allowed a bill banning captive audience meetings to go into effect without his signature. Similar measures are pending in Maryland and Massachusetts.

Advocates for such legislation say employer captive audience meetings infringe on employees’ free speech rights and are improperly coercive. But opponents of laws banning employer-sponsored meetings make a similar argument—that the legislation infringes on an employer’s free speech right to communicate its views to its employees.

Indeed, in challenging SB 3649, the Illinois Policy Institute argues that the new law is an unconstitutional content-based restriction. Under well-established First Amendment jurisprudence, legislation that restricts speech based on its content is presumptively invalid because, as Justice O’Connor explained, content-based restrictions on speech “are especially likely to be improper attempts to value some forms of speech over others.” City of Ladue v. Gilleo, 512 U.S. 43, 60 (1994) (concurrence). Still, content-based restrictions on speech fare better under First Amendment scrutiny than viewpoint-based speech restrictions—which is what two Minnesota business groups are arguing in their challenge to that state’s 2022 captive-audience law, filed in February of this year.

In addition to facing constitutional scrutiny, these laws may be preempted by federal labor law, including Section 8(c) of the National Labor Relations Act (NLRA), which precludes using an employer’s expression of its opinion as evidence of an unfair labor practice. To be sure, a similar law, to the extent that it made captive audience meetings unlawful, was found to be preempted by the NLRA by a Wisconsin district court in Metropolitan Milwaukee Association of Commerce v. Doyle, Case No. 10–C–0760 (E.D. Wisc. 2010). And, in a Connecticut case challenging similar legislation, the U.S. Chamber of Commerce also argues that federal labor law preempts the law banning captive audience meetings.

As cases challenging SB 3649 and similar legislation continue winding through the courts, the restrictions remain in effect unless enjoined by a court. Because most of the cases require constitutional interpretation, the U.S. Supreme Court may have the final say on the issue.

The NLRB’s Involvement

The wave of state captive audience legislation coincides with a similar effort at the federal level. In a 2022 memorandum, current NLRB General Counsel Jennifer Abruzzo asked the Board to reconsider its position on permitting employers to hold mandatory meetings about unions, writing that employees are “forced to listen to employer speech concerning the exercise of their statutory labor rights” which she says is at odds with labor law principles and grounds for the NLRB to overturn more than 75 years of precedent.

Even though the NLRB has not ruled on the issue since General Counsel Abruzzo’s memorandum (despite several opportunities to do so), the NLRB’s regional offices continue to issue unfair labor practices complaints against employers, arguing that Board law should be changed so that captive audience meetings are unlawful, even if no threats or coercive statements are made in them.

How to Comply

Clearly, this issue is far from being resolved, and as a result, employers and businesses remain in limbo. Accordingly, employers in Connecticut, Illinois, Maine, Minnesota, New York, Oregon, Washington, and Vermont should consider consulting labor counsel to understand how these laws apply to their workplace and create a compliance strategy. In addition, employers in those states may wish to review and revise employee handbook and policies to clarify that meetings concerning certain matters are voluntary and employees will not receive differential treatment for either participating or not participating in such meetings.