Colorado and Washington Likely to Join Growing List of States Banning Captive Audience Meetings: 5 Steps Employers Can Take to Comply

Colorado and Washington will likely become the latest states to ban employers from holding mandatory meetings with employees concerning religious or political matters. Such employer-sponsored meetings, known as “captive audience meetings,” require employee attendance under threat of discharge, discipline, or some other penalty, and concern religious or political matters – including whether employees should join a union. If the proposed legislation is enacted, Colorado and Washington would join a growing list of states that ban captive audience meetings. What are the key points employers need to know about these state bills? And given the broader movement of captive audience bans, what are five steps employers can take to comply?

Colorado

Democrats recently introduced a bill that carries some of the steepest employer penalties in the nation for conducting improper captive audience meetings or retaliating against employees who refuse to participate in them. They include:

• Actual damages, including back and front pay (if an employee does not seek reinstatement), or $10,000 (whichever amount is greater);
• $10,000 in additional penalties if the employer has engaged in similar violations within the previous six months;
• Equitable relief, including reinstatement; and
• Attorneys’ fees and costs.

Certain communications and meetings are expressly excluded from the proposed captive audience ban. Employers would be permitted to:

• Communicate information as required by law or as necessary for employees to perform their job duties; and
• Engage in “casual conversations” with employees if participation is not mandatory.

While the bill is in its infancy, Colorado continues to pass employee-friendly bills with Democrats enjoying a “trifecta” in Colorado.

Washington

Washington is much closer to officially enacting its ban on captive audience meetings. The state legislature just passed the “Employee Free Choice Act,” which is almost certain to be signed into law by Democratic Governor Jay Inslee. 

In addition to simply refraining from requiring attendance at such meetings, employers would also be required to post a state-drafted notice of employee rights provided under the act. 

Employees who claim they were forced to attend a captive audience meeting may file a claim in state superior court within 90 days of the alleged violation. If the employee is successful, the court can award the employee injunctive relief, reinstatement, back pay, and any other benefits it deems appropriate.

NLRB Weighs In

In 2022, the National Labor Relations Board’s top prosecutor issued a memo claiming that captive audience meetings violate the National Labor Relations Act. As a result, NLRB’s regional offices have been pursuing unfair labor practice charges against employers in an effort to secure a reversal of longstanding precedent supporting an employer’s right to hold mandatory group meetings. This issue has been teed up in at least one case which has been fully briefed to the NLRB since October 2023.

While the NLRB has not yet ruled on the issue, we anticipate that it may depart from established precedent and find that captive audience meetings violate the NLRA (especially given the Board’s current construction).

5 Steps Employers Can Take to Comply

Captive audience laws are in effect (Connecticut, Maine, Minnesota, New York, and Oregon) and under consideration (Alaska, California, Illinois, Maryland, Massachusetts, Oregon, Rhode Island, Vermont, and Washington) across the country. If you are in one of these states or convene nationwide meetings with employees concerning union representation, you should act quickly to comply with applicable state laws and consider taking the following five steps:

1. Collaborate with internal stakeholders and labor counsel to tailor an appropriate compliance strategy around the unique aspects of your workplace.
2. Train your front-line supervisors on the applicable legal parameters of captive audience laws.
3. Update your employee handbook and policies to clarify that meetings concerning religious or political matters are voluntary and there are no benefits or punishments for either participating or not participating in such meetings.
4. Be clear and upfront to employees about the purpose of your meeting if it will concern religious or political matters and expressly state that the meeting is voluntary.
5. Explore suitable ways to document the voluntary nature of your employees’ attendance and participation in captive audience meetings.

Conclusion

Fisher Phillips will continue to monitor workplace law developments and provide additional insights as needed. Make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information and invitations to our webinars. If you have further questions, contact your Fisher Phillips attorney, the authors of this Insight, any attorney in our Denver or Seattle offices, or any attorney in our Labor Relations Group.

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About the authors:

Patrick Collopy represents businesses in workplace-related disputes and counsels on all aspects of their employment relationship.  He regularly advises private and public-sector employers on a variety of matters, including employment policies, wage and hour claims, discrimination, harassment, wrongful termination, and other employment-related matters.  As a member of the firm’s Labor Relations Group, Patrick represents employers in labor matters relating to union organizing, unfair labor practices, collective bargaining, and grievance arbitrations.

Seth Kaufman is a partner in the firm’s New York office, representing employers – both large corporations and small start-ups – in a range of industries, including hospitality, fast food, healthcare, media, and real estate, among others. 

Seth has successfully defended employers as lead counsel in a wide variety of employment litigation, including complex class and collective wage and hour cases in state and federal court, investigations involving New York City’s Fair Workweek and just cause law for fast food employers, single-plaintiff employment discrimination and retaliation claims, and labor arbitrations and matters before the National Labr Relations Board (NLRB).  

Erik Laiho advises a range of private and public sector employers in optimizing their labor relations functions. He has extensive experience helping employers deal with union organizing campaigns, respond to unlawful labor practice charges, and in labor arbitrations stemming from collective bargaining agreements.

Erik appreciates that, in many instances, intentional, strategic actions can prevent issues before they arise. He knows that the legal landscape around labor relations is more fluid than other aspects of the law, and that each client engagement is unique. Erik thrives in environments where clients’ particular business objectives can be used to design and deploy creative solutions that satisfy both management and employees.

Henry Thomson-Smith advises businesses on various aspects of employment law, including labor relations issues, and defends them in litigation and alternative dispute resolution.

While in law school, Henry was a law clerk for the National Labor Relations Board, Region 29, in Brooklyn, New York; interned at Brooklyn Law School’s Workers Employment Rights Clinic; served as Articles Editor of the Journal of Corporate, Financial & Commercial Law; and was a member of the Alternative Dispute Resolution Honor Society.