Employees cannot be disciplined for refusing to attend meetings concerning union organizing campaigns

New York employers faced with union organizing are now prohibited from holding mandatory "captive audience" meetings (i.e., meetings in response to union organizing campaigns) and disciplining employees who refuse to attend such meetings. On September 6, 2023, Governor Kathy Hochul signed a new law amending Section 201-D of the New York Labor Law, which generally prohibits employers from discriminating against employees for engaging in legal, recreational, or political activities outside of work. Because the new law is set to become effective immediately, there are immediate next steps described below that employers should take to make sure they are in compliance with the new law.

New York joins Connecticut, Maine, Minnesota, and Oregon in banning discipline for refusing to attend captive audience meetings. Legal challenges, however, are expected based on conflicting federal law that may preempt this new law.

Protected Rights

Under the new law, it is unlawful for employers to refuse to hire, employ, or license, or discharge from employment or otherwise discriminate against employees because of an employee's refusal to:

• Attend an employer-sponsored meeting with the employer or its agent, representative or designee, the primary purpose of which is to communicate the employer's opinion concerning religious or political matters; or
• Listen to speech or view communications, the primary purpose of which is to communicate the employer's opinion concerning religious or political matters.

The new law defines "political matters" as "matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal, or labor organization."

Exceptions

The bill provides limited exceptions to the general ban on mandatory captive audience meetings. The new law does not prohibit:

• An employer or its agent, representative, or designee from communicating to its employees any information that the employer is required by law to communicate, but only to the extent of such legal requirement;
• 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;
• An institution of higher education, or any agent, representative, or designee of such institution, from meeting with or participating in any communications with employees that are part of coursework, any symposia, or an academic program at such institution;
• Casual conversation between employees or between an employee and an agent, representative or designee of an employer, provided participation in such conversations is not required; or
• A requirement limited to the employer's managerial and supervisory employees.

Posting Requirement

The law requires that every employer post a sign at every location where notices to employees are normally posted informing employees of their rights under Section 201-D. No further guidance has been provided regarding what the posting must include, but employers may consider posting the entire text of Section 201-D.

Next Steps

Because the bill is set to take effect immediately, employers with operations in New York should immediately take the following steps:

• Post signage informing employees of their rights under the new law; and
• Reassess and consider other measures for communicating with employees regarding labor organizing, union election campaigns.

[View source.]