On September 7th, 2023, New York became the latest state seeking to further restrict employers’ ability to voice their opinions on union activities, following Governor Kathy Hochul’s signature of Assembly Bill 6604. This bill updates Section 201-d of the state’s labor law to include new restrictions related to employer communications to employees about “religious or political matters,” with “political matters” being defined to include “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.” This definition of “political matters” to include “labor organization(s)” is crafted with one goal in mind: to prohibit employers from holding what unions commonly refer to as “captive audience” meetings with employees where the employer voices its views on union issues. The legislation then goes on to prohibit discrimination against employees for “…refusal to: (i) 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 (ii) listen to speech or view communications, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.”
The legislation also establishes that “Nothing in this section shall prohibit…casual conversations between employees or between an employee and an agent, representative or designee of an employer, provided participation in such conversations is not required…” The statute also requires employers to “post a sign in every workplace at the location or locations where notices to employees are normally posted, to inform employees of their rights pursuant to this section.” This language effectively prohibits employers from holding mandatory “captive audience” meetings, a stance the current General Counsel of the NLRB also maintains.
With the passage of this law, New York has joined Connecticut, Maine, Minnesota, and Oregon in enacting similar legislation. The United States Chamber of Commerce has filed a lawsuit against Connecticut’s similar law, alleging that the law violates the First Amendment free speech rights of employers and is preempted federally by the NLRA. That suit remains pending.
Until the courts weigh in on the Connecticut lawsuit, New York’s latest actions underscore the ever-shifting landscape of state labor law and the need for employers to seek expert legal advice when faced with a union organizing campaign.