Mandatory employer-sponsored meetings, otherwise known as captive audience meetings, sparked significant discussion and legislation these past few months. There are now 12 states that have enacted laws designed to ban or restrict captive audience meetings: Alaska, Connecticut, Hawaii, Illinois, Maine, Minnesota, New Jersey, New York, Oregon, Vermont, Washington, and, most recently, California.
At the federal level in late 2024, the National Labor Relations Board (NLRB) overturned decades of precedent by finding that requiring employees "to attend a meeting at which the employer expresses its views on unionization" violates the National Labor Relations Act (NLRA). But under this current presidential administration, the NLRB ruling, and certain state-sponsored captive audience meeting ban laws, may be short lived.
Below is an overview of the current status of the recently imposed NLRB captive audience ruling, California's captive audience meeting law, and the challenges faced by both.
Federal Law – Captive Audience Meetings under the NLRA
On November 13, 2024, the NLRB overturned a 75-year-old precedent that allowed employers to require employees to attend a mandatory meeting of groups of employees called by the employer during a union organizing campaign. These meetings permitted employers to express their views regarding unionization and were one of the few remaining tools in an employer's arsenal to defend against unionization efforts.
In restricting captive audience meetings, the NLRB reasoned that these meetings tend to coerce employees and infringe upon the right to organize under the NLRA. Under the new standards, employers are prohibited from requiring employees to attend meetings where the employer expresses its views on unionization, regardless of whether the employer is for or against unionization.
The NLRB carved out a limited "safe harbor" exception. Employers may lawfully hold meetings with workers to express their views on unionization if, in advance of the meeting, they inform employees that:
- The employer intends to express its views on unionization at a meeting at which attendance is voluntary;
- Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
- The employer will not keep records of which employees attend, fail to attend, or leave the meeting.
However, the NLRB was quick to point out in its decision that employers will be found to have unlawfully compelled attendance at a meeting concerning the employer's union views if, "under all the circumstances, employees could reasonably conclude that attendance at the meeting is required as part of their job duties or could reasonably conclude that their failure to attend or remain at the meeting could subject them to discharge, discipline, or any other adverse consequences."
With such an upheaval in precedent and a change in the presidential administration, it is unsurprising that this NLRB decision is being challenged. This decision was appealed by the employer and is pending before the United State Court of Appeals for the Eleventh Circuit.
Furthermore, the NLRB's new General Counsel issued GC Memo 25-05, detailing the new policy direction under the Trump administration and rescinding over a dozen policies endorsed by previous leadership, including GC Memo 22-04, which concerns captive audience meetings.
A GC Memo alone does not overturn a NLRB decision; it will take a reversal from the Eleventh Circuit or another Board decision to revert to the 75-year-old precedent. The more likely outcome is a reversal of the Board decision by the Eleventh Circuit, given that the majority of its judges were appointed by Republican presidents (six of which were appointed by President Trump) and the current instability of the NLRB.
Either way, under the current administration the federal captive audience meeting ban is on the chopping block.
California's Captive Audience Meeting Legislation Is Facing Its Own Constitutional Challenges
SB 399 in California (approved and added as California Labor Code section 1137) sparked significant discussion and concern among California employers with unionized workforces. Effective on January 1, 2025, the California Worker Freedom from Employer Intimidation Act (SB 399) prohibits employers from taking adverse actions against employees who choose not to attend meetings where opinions on religious or political matters, including unionization, are discussed.
In response to SB 399, the California Chamber of Commerce and the California Restaurant Association filed a federal lawsuit in the United States District Court for the Eastern District of California on December 31, 2024. The lawsuit challenges SB 399, arguing that it infringes on employers' free speech and is preempted by the NLRA. On February 11, 2025, the Liberty Justice Center and the California Justice Center filed a separate lawsuit in the same court, making similar arguments. Both lawsuits ask for a temporary and permanent injunction blocking enforcement of SB 399.
Other states have faced legal challenges in the past, and more challenges are expected. For example, lawsuits were filed against Oregon and Connecticut challenging their respective captive audience legislation as preempted by the NLRA. More recently, the Illinois Policy Institute filed a lawsuit on August 8, 2024, which it amended on October 30, 2024, in the United States District Court for the Northern District of Illinois (Eastern Division), trying to block Illinois' captive audience law from going into effect January 1, 2025 on First Amendment grounds. Illinois Policy Institute v. Flanagan, Case 1:24-cv-06976. No decision has been rendered yet.
The outcome of the California lawsuits remains uncertain, as both cases are sealed, and the NLRB is in a state of flux, given the current litigation surrounding Board Member Wilcox. For now, employers should apply applicable state law and federal law when it comes to captive audience meetings but remain cognizant of the ongoing litigation.
We will continue to closely monitor the ongoing litigation and other developments in labor law under this administration.
