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“Captive Audience” Bill Clears Connecticut House But Is It Even Constitutional?

Posted in Legislative Developments

Last night, after many hours of debate, the Connecticut House passed the so-called "captive audience" bill that would prohibit employers from requiring their workers to attend meetings concerning views on politics and religion.

But the truth is the bill (H.B. 5460) is really about one thing: prohibiting employers from talking about unions when a vote on union-representation is about to take place.  It is something that federal law has allowed for 60 years.  The OLR Analysis hints at this but does little to clarify the potential impact of the bill.

If the bill is passed, it may be that the same federal law (National Labor Relations Act) is the bill’s downfall.

Why do I make such a prediction? Well, Wisconsin passed a similar measure last year that was struck down on constitutional grounds.  The Labor Relations Today blog has the details here. 

According to the Labor Relations Counsel blog, the new law was challenged and ultimately thrown out on the grounds that the Supremacy Clause of the Constitution forced the application of the NLRA to the exclusion of any state law to the contrary. 

The suit was filed on September 3, 2010 by the Wisonsin Manufacturers & Commerce and others against the State of Wisconsin saying that the law was preempted by the NLRA and violated the free speech rights employers enjoy under the First and Fourteenth Amendments.

The State quickly backpedaled from the law and entered into a stipulation in early November.  You can download that stipulation here.  And by mid-November, the Chief U.S. District Judge Charles N. Clevert, Jr. entered a Judgment and Order in favor of WMC on the NLRA preemption claim. (You can view the court’s order here.

Will the Connecticut bill (if passed) survive scrutiny? That remains to be seen.  The OLR Bill Analysis fails to mention the possible infirmities of the bill or analyze the cases cited in the Wisconsin stipulation.  

The CBIA has declared their opposition to the measure; the bill moves on to the Senate for a possible vote.  No word yet on whether a similar constitutional challenge would be raised here. 

For employers, this is an important bill to follow. If passed, this could have significant ramifications in both the unionized and non-unionized workplace.

  • smayer13

    Bigger question is whether Acting GC Solomon will file a lawsuit against the State of Connecticut to challenge the law (if passed) on preemption grounds with the same energy as he is pursuing Arizona and others who passed secret ballot measures.