Illinois Restricts Employer Communications to Employees in New Captive Audience Prohibition

August 7, 2024

Last week, Illinois enacted the Worker Freedom of Speech Act, which prohibits employers from holding captive audience speeches. This new law will restrict Illinois employers from holding such meetings and make it more difficult for employers to express their view as to whether the workforce should unionize.

Captive Audience Meetings Defined

Captive audience meetings are commonly utilized by employers facing union organizing campaigns. Through a captive audience meeting, an employer could require its employees to attend a meeting during working hours so that it could express its views.  These meetings have been a lawful way for employers to honestly express their views about unionization to their employees for over 76 years since the National Labor Relations Board held so in its 1948 decision in Babcock & Wilcox Co., 77 NLRB 577 (1948). The Board derived this employer right from Section 8(c) of the National Labor Relations Act which allows employers to express “any views, argument, or opinion” to its employees so long as the expression does not contain any threat of reprisal or force or promise of benefit.

Employers do not have free range to say whatever they wanted to their employees in a captive audience meeting, however. Section 8(c) of the Act permits the expression of any view, argument or opinion, so long as that expression does not contain an unlawful threat or promise. As such, employers are not allowed to threaten or coerce their employees in a captive audience meeting. This also means that while an employer could require its employees to attend a meeting to listen to its views on unionization, the employer cannot restrict employees in the meeting from expressing their views in support of unionization. As such, it is crucial for employers to carefully prepare their speeches and train their supervisors so that nothing said can be perceived as an unlawful threat or promise of benefit.

Illinois Worker Freedom of Speech Act

Under the Worker Freedom of Speech Act, employers are prohibited from discharging, disciplining, penalizing, or threatening to discharge, discipline or penalize, or take any adverse action against an employee because the employee declines to attend or participate in an employer-sponsored meeting, or declines to receive or listen to communications from the employer, if the meeting or communication is to communicate the opinion of the employer about religious or political matters. The Act defines “political matters” as “matters relating to…the decision to join or support any…labor organization.” The Act further prohibits employers from discharging, disciplining, penalizing, or threatening to do the same as a means of inducing an employee to attend or participate in meetings or receive or listen to the communication.

The Act gives employees a private right of action against employers who engage in this conduct, and employers who violate the Act are subject to civil penalties by the Illinois Department of Labor. Employers are also required to post a notice to employees of their new rights under the Act within 30 days of the effective date of the Act. The Act goes into effect January 1, 2025.

Where We Stand Now

The Illinois Worker Freedom of Speech Act effectively takes away the employer’s right to require its employees to attend a meeting for the purpose of expressing its views on unionization. While employers are still able to hold voluntary meetings for the same purpose, the Illinois legislature has seriously hampered the effectiveness of such meetings by removing the employer’s ability to make these meetings mandatory. Meetings such as these have been utilized by employers in the face of a union organization campaign so that the employer can express its view to its entire workforce. As such, preventing employers from requiring their employees to attend these meetings seriously hamstrings an employer’s ability to get its message across to every employee.

In light of this new law, employers are faced with additional hurdles when attempting to convey their view on unionization to their employees. There is a very tight line that employers must walk when seeking to communicate with their employees during a unionizing campaign, and, in light of the NLRB’s Cemex decision, effectively and lawfully communicating with one’s employees can make or break the employer’s efforts during such campaign.

If your company is faced with a unionizing campaign or you have questions regarding how you can lawfully communicate with your employees, please contact Gaetano Urgo at gurgo@dcamplaw.com or by telephone at (312) 995-7128.