For over 60 years, employers have had a federally protected right under the National Labor Relations Act (NLRA) to hold paid, mandatory meetings with employees to discuss various issues related to unions and unionization.  These meetings, often referred to by unions as “captive-audience” talks, have historically been used by employers to explain to new hires and other employees the tactics unions use to collect union authorization cards, the legal rights employees have when asked to sign those cards, and the merits of a union-free workplace.  Union employers use these meetings to provide updates on the status of collective bargaining, explain the employer’s contract proposals, and inform employees of their rights and responsibilities in the event of a strike.

On May 12, 2010, Wisconsin became the second state in the nation (Oregon was the first earlier this year) to pass a law designed to strip employers of their right to hold “captive-audience” talks with their employees.  The Wisconsin Fair Employment Act (WFEA) was amended to prohibit employers from discriminating against employees who refuse to attend “employer-sponsored meetings” or “participate in any communication with the employer or with an agent, representative, or designee of the employer” where the “primary purpose” of the meeting or communication was to express the employer’s “opinion” about an employee’s decision to join or support a union.

On September 3, 2010, Wisconsin Manufacturers & Commerce (WMC) and Metropolitan Milwaukee Association of Commerce (MMAC), represented by Littler’s Milwaukee office, filed suit against the State of Wisconsin and the Department of Workforce Development seeking to have the WFEA amendments declared unconstitutional.  The suit claimed that the WFEA amendments were preempted by the NLRA and violated the free speech rights employers enjoy under the First and Fourteenth Amendments.    

On November 15, 2010, Chief U.S. District Judge Charles N. Clevert, Jr. entered a Judgment and Order in favor of WMC and MMAC and their employer members on the NLRA preemption claim.  The judgment declares the WFEA amendments unconstitutional insofar as they prohibit employers from discriminating against employees who refuse to attend a mandatory meeting or participate in any communication with their employer about the decision to join or support a union.  This judgment permanently enjoins the State of Wisconsin from enforcing or seeking to enforce the amendments.  As a result, employers in Wisconsin will continue to enjoy NLRA and constitutional protection in holding paid, mandatory meetings with employees to discuss union issues.

This entry was written by Jonathan Levine and Sofija Anderson.

Photo credit: Goldsztajn