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A new state law prohibits employers from requiring employees to listen to their religious or political opinions, including those on unionizing.
Gov. Kathy Hochul signed the bill into law last month that bans “captive-audience meetings,” which are mandatory meetings typically held by employers to get an anti-union message across to the employees.
“There’s been a lot of publicity around unionizing efforts in New York state and around the country,” said Anna McCarthy, a senior associate attorney with Harter Secrest and Emery LLP. “And the bills that come before the governor are often a reflection of the issues that are most important to the constituents at that time.”
Nationally, unionizing efforts have been on the rise, since the pandemic caused a shift in the labor climate. In Western New York, there have been significant union efforts at Starbucks, Tesla and even smaller employers like Remedy House.
Jim Grasso, a partner at Phillips Lytle LLP, said public support for unions is at a 50-year high and the presidential administration is also pro-union.
“Especially with the United Automotive Workers strike, we haven’t seen this type of activity in decades,” said Grasso, who has more than 30 years of experience in labor and employment law. “While it’s not unique to Buffalo, New York is the most heavily unionized state in the country, and Western New York is the most unionized region of the state.”
That set the stage for Hochul’s law, which bans captive audience meetings without actually using that term, McCarthy said. The law makes it illegal for an employer to discipline or discriminate against an employee because that employee refuses to attend a mandatory meeting held for the purpose of the employer communicating their opinions on religion or politics.
“The way that political matters are defined includes elections regulations and the idea to support or join a union,” McCarthy said.
Grasso said the new law is seen by some employers as a pro-union statute that “muzzles” employers’ First Amendment or free speech rights.
“The captive audience meeting is something that employers still find to be very effective,” Grasso said. “It can be very persuasive. The inherent nature of having to listen to your employer’s unfavorable opinion on unions can be coercive and there’s this idea that the employees will be dissuaded from further engaging in union activity.”
Both Grasso and McCarthy expect the law will be challenged, since captive-audience meetings are protected under the federal National Labor Relations Act and have “been a longstanding permissible thing for an employer,” McCarthy said.
A similar law was passed in Wisconsin more than a decade ago, but was challenged by a group of business owners that claimed the law was preempted by the NLRA, McCarthy said. Wisconsin no longer enforces the state law banning captive-audience meetings, she said.
Some other states that have passed similar laws — Oregon, Connecticut, Maine and Minnesota — have also seen litigation stem from the NLRA.
“It’s going to be challenged,” Grasso said. “The federal law allows it, so the state can’t restrict those rights.”
Until that happens, there are some tips on how to comply with the law.
Post a notice.
The law requires employers to post a sign in every workplace to inform employees of their rights under this law, McCarthy said.
Make it a voluntary meeting or email.
Employers may want to consider voluntary meetings, where employees can decide if they want to listen.
“If a lot of people show up, that might tell you that you have support from your workforce, and if only two people show up, that’s a pretty good indication of how strong union support is at your workplace,” McCarthy said.
Employers could also send their opinions in an email, they just can’t require that employees read it.
“It’s all about thinking more creatively about communicating with employees,” she said.
Train managers.
It’s important for employers to inform their management teams of the law and what they should or should do if there is a unionizing campaign, McCarthy said.
“You don’t want a rogue manager holding an illegal captive-audience meeting,” she said.