Toward the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States

Abstract:     
The U.S. Supreme Court has long interpreted the National Labor Relations Act as permitting employers to hold workplace captive audience meetings with their employees on labor-oriented issues. Employees must attend these meetings at pain of discharge and may not be able to leave these meetings, ask questions, or espouse pro-union views.

Under Worker Freedom Act legislation percolating presently in a number of state legislatures, employers would not only be prohibited from holding mandatory sessions during work to express opinions on labor-related, political, and religious issues, but would be liable for retaliating against workers who reported the holding of such sessions.

The focus of this essay is whether Worker Freedom Act legislation would be preempted by federal labor law. This essay answers this question in two ways. First, under current labor preemption doctrine and Supreme Court precedent interpreting rights of states to continue to regulate property and contract rights in the labor relations context, courts should find that such state laws are not preempted by the NLRA. Second, this essay renews the call for a reconceptualization of labor preemption doctrine by the Supreme Court to place such legislation on a more sound doctrinal foundation. Under this new conception, once federal labor law is satisfied by permitting the free exchange of ideas on unionization between employers and their employees, state should then be able to go beyond that floor and provide additional protections to employees to be free from mandatory indoctrination sessions by their employers at work.

Keywords: captive audience speech, employment, labor preemption, NLRA, Worker Freedom Act

Accepted Paper Series