Employers are banned from mandating, under threat of discipline, that employees attend meetings or speeches regarding religious or political matters under the “Employee Free Choice Act” (EFCA) passed by Washington’s Legislature and signed by Governor Inslee. The law becomes effective on June 5, 2024. What did the Legislature have in mind when it passed this law during an election year and what does this mean for employers?
Employee Free Choice Act Background
What Are Captive Audience Meetings?
Traditionally, employers have held mandatory “captive audience” meetings — that is, meetings where an employee’s unexcused absence could result in discipline — to share corporate and personal views. These meetings are especially common during labor organizing efforts. Employers may also hold these meetings when they have personal or business-related interests aligned with particular political or religious candidates or movements.
What Are Political or Religious Matters?
The EFCA defines “political matters” as any matter relating to political office or parties, legislative or regulatory proposals, and the decision to join any political party or political, civic, community, fraternal, or labor association or organization.
Meanwhile, “religious matters” are defined as any matters related to religious affiliation or practice, and the decision to join or support any religious organization.
What Employer Activity Is Banned?
The EFCA prohibits all Washington employers, both public and private, from requiring employees to attend meetings where the “primary purpose” of the meeting is to communicate the employer’s opinion concerning political or religious issues. The law does not define “primary purpose.”
Essentially, the EFCA allows an employee to refuse to attend or participate in a captive audience meeting. In addition, any employee who faces adverse action for their refusal to attend such a meeting now has the right to file a lawsuit in superior court within 90 days of an alleged violation. Potential remedies could include injunctive relief, reinstatement (if the employee is fired), expungement of records (if the employee received discipline or penalization), back pay, reestablishment of benefits, or other appropriate relief.
Notably, the EFCA also requires employers to post a notice of the employee rights described in the law.
Exceptions
The Washington Legislature carved out several situations where the EFCA will not apply, including: legally-mandated communications to employees, voluntary meetings, communications necessary for job duty performance, and workplace harassment or anti-discrimination training. Religious organizations exempt from Title VII requirements are also exempt from the EFCA with respect to speech on religious matters to employees who perform activities on behalf of the religious entity.
How Will This Law Affect Efforts Against Labor Organizing?
Employers frequently use captive audience meetings to combat unionization efforts. For decades, the meetings have been legal but regulated under labor laws enforced by the National Labor Relations Board (NLRB) and state agencies, like Washington’s Public Employment Relations Commission. Prior to the EFCA, the only major restriction on mandatory captive audience meetings was that no such meeting could be held too close to the start of the secret ballot election period.
Regardless, because the EFCA defines “political matters” as encompassing the decision to join a labor organization, it would forbid this activity in Washington, potentially creating some labor law conflicts.
The EFCA will complement other laws in Washington that limit employers from discriminating on the basis of political matters. Those include Washington state statute RCW 42.17A.495, which already bars employers and labor organizations from discriminating against employees on the basis of political matters or improperly diverting funds to political causes, and Seattle Municipal Code §14.04.020, which prohibits employers from discriminating against employees on the basis of political ideology.
Does Any Other State Ban Captive Audience Meetings?
Banning so-called “captive audience” meetings has recently emerged as a major political issue for pro-labor organizations and Democratic-led states, despite its longstanding legality under federal law.
So far, seven states (including Washington) have passed laws banning mandatory captive audience meetings: Oregon (2010), Wisconsin (enacted 2010; not enforced), Connecticut (2022), New York (2023), Minnesota (2023), and Maine (2023). These laws all contain similar provisions and definitions, and all seek to protect organized labor’s interests.
Meanwhile, eight other states have proposed similar legislation, including Alaska, California, Colorado, Illinois, Maryland, Massachusetts, Rhode Island, and Vermont. While passage of the bills may not be guaranteed, the political winds may blow that way in some states.
Legal Challenges Await
Washington’s law may be challenged in court. When Wisconsin passed its ban in 2010, several business groups sought to overturn the law based on its infringement on employer free speech and preemption under the National Labor Relations Act (NLRA). The State of Wisconsin later agreed to a stipulation that the legislation was preempted by the NLRA.
In 2019, the NLRB sought to invalidate Oregon’s law based on NLRA preemption, but the effort failed based on a procedural deficiency. More recently, the NLRB’s General Counsel stated her support for a ban on captive audience meetings in a 2022 memorandum. The NLRB has yet to rule on the issue.
Meanwhile, business groups have already challenged the captive audience legislation in both Minnesota and Connecticut. Washington-based business groups may raise similar arguments against the EFCA. During the legislative session, concerns were raised that the legislation fails to adequately define religious or political matters, violates the First Amendment right to free speech, and is preempted by the NLRA.
What Should Employers Do Now?
- Continue to pay close attention to the legal landscape and consult with counsel regarding the EFCA’s implementation and legal challenges. Challenging a law usually takes years with the potential for appeals. In the meantime, employers should seriously weigh whether noncompliance with the law is worth the potential risk of damages while the legal challenges make their way through the courts.
- Update your handbooks, policies, and HR practices to comply with the EFCA. For example, include language explicitly stating that any meeting with a primary purpose of communicating religious or political matters is strictly voluntary, and employees will not be disciplined for being absent. This includes collaborating with your managerial staff, supervisors, and consultants to ensure compliance.
- Don’t take unnecessary risks with language or the nature of meetings. Be clear that the employer’s expectation regarding political or religious meetings will never be anything but strictly voluntary and, importantly, inform your employees when the meeting will relate to political or religious matters ahead of time so that they can exercise their right to refuse attendance. Additionally, be aware that statements from management about attendance carry heavy weight and can be seen as coercive even if not intended.
- Understand that actions which attempt to gauge interest and attendance may be seen as coercive.
- Do not treat employees who attend or refuse to attend differently.
- This law applies to all employees working in Washington state. It is believed that it will also apply to supervisors and managers because there is no exclusion for supervisory personnel, such as those limits found in labor laws.
Lane Powell’s team of labor and employment attorneys is here to help your organization comply with state and local laws, and develop and implement the strategy that supports your business and your employees. For more information, contact Ethan Picone, Katheryn Bradley, Shirley Lou-Magnuson, or Paul Ostroff, or visit our firm’s Labor, Employment & Benefits page. Keep up-to-date by subscribing to Lane Powell’s Legal Updates.