A coalition of business groups challenging Connecticut’s recently adopted ban on “captive audience” meetings, which unions say are used to thwart organizing, made their case in oral arguments before a federal judge in Bridgeport Monday.
Under the law, which has been in place since 2022, employers can’t mandate meetings at which the employer shares its views on religious or political matters, including unionization.
The plaintiffs in the lawsuit, led by the U.S. Chamber of Commerce and joined by the Connecticut Business and Industry Association and other trade groups, argued in their 2022 complaint that the state ban is unconstitutional, violating free-speech and equal-protection rights under the Constitution.
The law “is an attempt to suppress that expression,” Bryan Killian, lead attorney for the plaintiffs, said in court Monday.
A lawyer for the defendants — State Labor Commissioner Dante Bartolomeo and State Attorney General William Tong — argued the law doesn’t prohibit free speech. Employers can still hold such meetings, Assistant Attorney General Timothy J. Holzman argued, they just can’t require attendance or punish employees for not attending.
“Restricting discipline is not a restriction on the speech itself,” Holzman said.
But a larger question loomed over the proceedings Monday: whether Connecticut can regulate the practice in the first place.
That question, and the entire case, was thrown for a loop last week when the National Labor Relations Board overruled a longstanding federal precedent that had allowed such meetings to take place — the very precedent Connecticut’s labor-friendly Democratic majority sought to circumvent when it passed the ban in 2022.
The NLRB ruled Nov. 13 that employers are in violation of the National Labor Relations Act if they require employees to attend meetings in which the employer expresses views on labor organizing, and threatens employees with discipline or firing if they don’t attend.
“Today’s decision better protects workers’ freedom to make their own choices in exercising their rights under the Act, while ensuring that employers can convey their views about unionization in a noncoercive manner,” board chairman Lauren McFerran said in a statement.
Still, the lawyers arguing the Connecticut case haven’t changed their stances on the question of federal preemption. Despite the NLRB’s reversal of federal precedent, lawyers for the group challenging Connecticut’s law say federal law still preempts the state statute. Lawyers for Connecticut’s labor department say it doesn’t.
“This is a very odd situation,” United States District Judge Kari Dooley said addressing Killian at one point during oral arguments. “You’re each arguing positions I’d expect the other side to be arguing.”
Much of the morning’s arguments were spent addressing testimony submitted by Chris DiPentima, president of the Connecticut Business and Industry Association, the state’s largest trade association, which advocates on behalf of businesses before the state government.
In his testimony, DiPentima said before the law went into effect, CBIA’s mandatory all-staff meetings included “public-policy updates” informing employees about its lobbying efforts; In fact, it was a primary purpose of these meetings to share policy updates, he said. But since the law passed CBIA has ceased to include these updates as part of its required meetings, DiPentima said.
“I believe that the public-policy updates CBIA previously provided at its mandatory all-staff meetings, including updates about who it has endorsed in state elections, could be considered communications regarding CBIA’s opinions on ‘political matters,’ as defined by [the statute],” his testimony reads. “I also believe that directing all employees to attend the all-staff meetings could be considered a threat of discipline to any employee who does not attend.”
The Department of Labor responded in a court filing that it would not seek penalties against CBIA for those activities, pointing to language in the law that states, “Nothing in this section shall prohibit… an employer or its agent, representative or designee from communicating to its employees any information that is necessary for such employees to perform their job duties.”
DOL’s Thomas Wydra wrote, “The Act is not intended to police the speech of advocacy groups about matters that are within, or even arguably within, the group’s core area of advocacy,” adding later, “DOL will not enforce the Act against an employer that takes adverse actions against an employee who refuses to listen to information about the company’s core mission.”
But despite those assurances, Killian said his clients remained concerned. “CBIA views that as a cold comfort,” he told the judge.
After posing several questions to Killian about this argument, Judge Dooley commented: “It’s a little bit of a head-scratcher, honestly.”
Beyond the NLRB decision, another case could weigh on the outcome of Connecticut’s captive audience law challenge. Also on Monday, lawyers for Amazon.com and SpaceX were arguing before the Fifth Circuit Court of Appeals in New Orleans, making the case that the NLRB itself is unconstitutional and seeking to halt its oversight.
Connecticut AFL-CIO president Ed Hawthorne said in an emailed statement that the state’s law is “an important step in protecting working people from employer intimidation and harassment.” He added, “Now, more than ever, it’s crucial for working people to have protection on the job.”
In closing remarks just after noon Monday, Judge Dooley thanked the lawyers for their “well-briefed” case and acknowledged, “I obviously have my work cut out for me.”
She promised a decision in a “reasonably expeditious fashion.”
