Tong Breathes New Life Into Captive Audience Bill
HARTFORD, CT — With a new attorney general, Connecticut’s Democratic Senators believe they have a better chance of passing legislation that seeks to limit what employers can say to employees in the workplace.
Connecticut’s former Attorney General George Jepsen tossed cold water on a similar “captive audience” bill in 2011 following an 11-hour debate in the House. Years later, Jepsen issued a formal opinion on April 26, 2018, that said similar legislation was pre-empted by federal law and warned lawmakers about passing it.
In the formal opinion, Jepsen said states can impose things like worker safety protections and the minimum wage, “But the exercise of traditional police powers is pre-empted when it traverses into those areas Congress has determined states should not be permitted to regulate. We conclude that HB 5347’s prohibition, if enacted, would do just that, and a court would likely determine that it is pre-empted.”
HB 5347 was last year’s bill number. This year Senate Democrats have proposed SB 64 and SB 440, which include the same prohibition for businesses looking to speak to employees about the their views on political or religious matters. Most often the meetings Senate Democrats find objectionable involve scaring employees out of organizing a union.
“We think it is clearly constitutional and that there should be no bar to it,” Looney said. “This is really an issue of basic fairness.”
Former Attorney General Richard Blumenthal informally told lawmakers in 2007 that he would defend the legislation in court and saw a path to victory.
Looney is hoping Tong sees it that way, too.
“The Attorney General strongly believes that state law must protect workers from threats, intimidation, and abuse by their employers,” Elizabeth Benton, Tong’s spokeswoman, said. “As a legislator and over many years, the Attorney General has worked hard to protect workers when their rights to organize have been under attack, and he stands shoulder-to-shoulder with working people and their families across Connecticut. There are various proposals under discussion by the legislature and the Office of the Attorney General is monitoring and will provide guidance as appropriate.”
Looney said there are still reasonable ways for employers to contact employees outside of forcing them to attend a meeting.
“They can call them on the phone. They can visit them at home. They can give them fliers,” Looney said. “With the exception of forcing them into a room to have a meeting that they would rather not be in.”
Sen. Julie Kushner, D-Danbury, said they would never tolerate it if an employer called an employee in before a November election and asked them how they were going to vote.
“We would say that’s infringing on a person’s rights at work,” Kushner said. “But we do let them do that when a person is trying to exercise their rights under the federal law to establish a union.”
Kushner, who retired as New England regional director for the United Auto Workers last year, said she’s seen workers come out of those meetings in tears.
“We have to put an end to this. We can make our workplaces much fairer, much safer, much happier places for workers,” Kushner said. “They have the right organize let’s give them the right to do that without interference or fear of retaliation.”
The Connecticut Business and Industry Association has maintained that the legislation is unnecessary and an impermissible restriction on the free speech rights of employers.
“If enacted, the proposal would prevent discussions in mandatory workplace meetings between employers and employees of any issues related to community engagement, unionization, wages and benefits, working conditions, and even legislation or regulations that could impact the business,” the organization said last year following Jepsen’s formal opinion.