Captive audience meetings are employer sponsored meetings where the employer requires employees to attend and listen to the employer position concerning a union organizing effort. The meeting is intended to dissuade workers from unionizing. These meetings continue to receive significant attention at the state and federal level. There are now 12 states, including Minnesota, which have enacted laws designed to ban or restrict captive audience meetings: Alaska, Connecticut, Hawaii, Illinois, Maine, New Jersey, New York, Oregon, Vermont, Washington, and, most recently, California.
Captive Audience Meetings as a Federal Issue
Late last year, the National Labor Relations Board (NLRB), at the urging of its then General Counsel, Jennifer Abruzzo, overturned long standing precedent by finding that requiring employees “to attend a meeting at which the employer expresses its views on unionization” violated the National Labor Relations Act (NLRA). Abruzzo forecasted this result in a memo asserting that the common employer practice of holding such meetings was illegal. GC-22-04, April 7, 2022 (rescinded by Acting General Counsel William Cowen on February 14, 2025, GC-25-05).
The “Employer Sponsored Meetings or Communications Act”
The Minnesota legislature adopted a law in 2023 known as the “Employer-Sponsored Meetings or Communication Act.” (the “Act”). The Act is an anti-captive audience law which prohibits employers from “tak[ing] any adverse employment action against an employee” for “declin[ing]” to attend meetings or receive communications where an employer disseminates its opinion “about religious or political matters.” Minn. Stat. § 181.531, subd. 1(1). It provides a private right of action for “aggrieved employee[s],” id. at subd. 2, and requires employers to post a “notice of employee rights” under the Act “within the workplace,” id. at subd. 3(b). It was amended to require the Commissioner to “develop an educational poster providing notice of employees’ rights provided.” Id. at subd. 3(a).
The Minnesota Chapter of Associated Builders and Contractors and two other associations (MNABC) sued Attorney General Keith Ellison, Department of Labor and Industry Commissioner Nicole Blissenbach, and Governor Timothy Walz seeking to enjoin them from enforcing the Act. The plaintiffs claimed the Act regulates employer speech in violation of the First Amendment and is preempted by the federal NLRA.
Following the filing of the lawsuit, two of the defendants, the Attorney General and the Commissioner, filed declarations stating each had “not enforced” or “threatened to enforce” the Act and neither had “no present intention to commence” enforcement proceedings. Significantly, Governor Walz, who was not an original defendant, but after enactment, told an audience at a trade union conference that “Minnesota was going to ban that practice, of having those captive anti-union meetings. You go to jail now if you do that in Minnesota because you can’t intimidate people.” After this statement, he was then added as a defendant in the lawsuit.
District Court Ruling
The defendants asserted state sovereign immunity and moved to dismiss the complaint, factually attacking the court’s subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). The Governor and Commissioner argued they did not have “a sufficient connection to the Act’s enforcement,” and the Attorney General and Commissioner declared they did not have “present intent” to enforce the Act. The district court denied the motion. The defendants appealed.
Appeals Court Ruling
In a decision issued on September 3, the 8th Circuit Court of Appeals reversed the district court. According to the Court, states are immune from suit under the terms of the Eleventh Amendment and the doctrine of sovereign immunity. But, the Court, citing a 1908 decision, acknowledged a narrow exception allowing certain private parties to seek judicial orders in federal court to prevent state executive officials from enforcing state laws that are contrary to federal law. Under the exception, the state official must have some connection with the enforcement of the challenged law and threaten and [be] about to commence proceedings. The Appeals Court addressed each of the defendants separately.
The Court found that the Governor did not have sufficient connection to enforcement to fall within the exception even though the Governor could appoint and remove a commissioner who may not be a zealous advocate about the law or engage counsel independent of the Attorney General.
Likewise, the Court found that the Commissioner did not have sufficient enforcement authority to fall within the exception. The Court found that the Commissioner had ministerial duties and no enforcement duties under the Act.
While the parties in the litigation all agreed that the Attorney General had the power to enforce the Act, they disagreed as to whether he had sufficiently threatened to enforce the Act to fall within the exception. As noted above, the Attorney General stated that he had no “present intention” to enforce the law. According to the Court, this declaration meant that the plaintiff lacked standing to sue, divesting the district court of subject matter jurisdiction.
The Court dismissed with prejudice the claims against the Governor and the Commissioner and dismissed without prejudice the claim against the Attorney General.
What does this mean for Minnesota employers?
The NLRB until late last year had long held that the NLRA allows an employer to engage its employees in a non-threatening “expression of views”. We expect that the NLRB will revisit this issue and again permit some form of captive audience meetings when an appropriate case is appealed to it. When that will happen remains to be seen as the NLRB is currently unable to render decisions due to a lack of quorum.
In the meantime, the Minnesota law prohibiting “captive audience” meetings remains on the books. The Commissioner and the Attorney General’s statements disavowing any intent to enforce the law also remain. The issue of whether the law is preempted by the NLRA or the First Amendment remains unresolved. We expect that if the Minnesota Attorney General seeks to enforce the Act, a new lawsuit will be brought, and the answer may become clearer. This is a volatile area of labor law and employers need to be especially careful and seek labor counsel if they intend to persuade employees in captive audience-like settings.
