On September 6, 2023, New York Governor Kathy Hochul signed amendments to state law that enhance employee protections. The amendments to Section 201-d of the New York Labor Law prohibit employers from disciplining employees for refusing to listen to the employer’s opinion concerning religious or political matters. Most notably, this new restriction prevents employers from holding so-called “captive audience” meetings in response to union organizing campaigns.
New York Labor Law Section 201-d
For decades, New York has had among the broadest protections for employees based on their off-duty conduct. Section 201-d of the state’s Labor Law has long prohibited employers from discriminating against applicants and employees for any of the following:
- Legal political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property.
- Legal use of consumable products before the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property.
- Legal recreational activities outside work hours off of the employer’s premises and without use of the employer’s equipment or other property.
- Membership in a union or any exercise of rights under the federal Labor Management Relations Act or New York’s Taylor Law.
The law was amended in 2021 to grant employees the right to use marijuana outside of work.
Read here for more on the traditional 201-d protections.
“Captive Audience” Meetings
For the past 75 years, the National Labor Relations Board has interpreted the National Labor Relations Act to permit employers to hold mandatory meetings during employees’ work time to convey the company’s views on unions and labor organizing. Such meetings have been most commonly used in response to an imminent threat of unionization, such as when a union has filed an election petition with the NLRB.
Because the employees are at work and being paid, the NLRB has reasoned that their employers have the right to determine what the employees will be doing, even if that means attending a meeting. Of course, there have always been limits on what the employer can say, especially while an election is pending. For example, employers could not threaten reprisal based on an employee’s support of the union or offer incentives to employees who vote no to representation. Still, labor unions have long derided this practice as unduly coercive. They argue that because the employees are a “captive audience,” they have no choice but to listen to what management says and may believe they must go along with the company’s view.
Despite the longstanding NLRB precedent, the agency’s current General Counsel has indicated an interest in reconsidering an employer’s prerogative to hold such meetings. Given their decidedly pro-labor sentiments, it is entirely plausible that the current NLRB majority will eventually reverse the Board’s landmark 1948 ruling in Babcock v. Wilcox.
Section 201-d Amendments
Following past attempts by Oregon and Wisconsin, the New York Legislature has clearly set out to block captive audience meetings as a matter of state law. In other words, they’re trying to do what the NLRB might, but hasn’t yet accomplished. (Connecticut, Maine, and Minnesota have now also enacted similar legislation.)
In case there was any uncertainty about their intentions, the sponsors of the amendments included the following in their memorandum introducing the bill:
“Over the past 40 years, as labor union membership has declined and worker protections have been stripped, employers have been emboldened to share their political and personal beliefs with employees. . . . Not only are employers fabricating support for partisan politicians of their liking, they are also pushing their opinions on legislative issues, unionism, and religious topics on their workers.
It is interesting that the Legislature has squeezed the ban on captive audience meetings into a law designed to protect off-duty conduct. The connection is perhaps logical, but seemingly tenuous. In theory, the amendments purport to safeguard employees’ political and religious speech and beliefs, which one assumes would typically be exercised outside of work. However, the direct prohibition here is not related to what employees choose to do, but on how employers can communicate with their employees–even during work time.
Political Matters
Section 201-d already used the term “political activities” to mean “(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.” Generally, employers could not punish employees for engaging in those activities on their own time.
Now the law also separately defines “political matters.” This new term means “matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization.”
At first glance, that addition would seem to expand the scope of political activity that employees are entitled to engage in. Ironically, however, employees aren’t getting any new rights to join political parties or civic organizations, as discussed below. If they have such rights, they’re afforded by the pre-existing aspects of Section 201-d.
Religious Matters
The amendments also add the term “religious matters” to Section 201-d. It is defined to mean “matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.”
Both federal and state employment discrimination laws already provide extensive protections for employees based on their religious beliefs. Section 201-d, as amended, doesn’t directly affect those rights. Instead, it (arguably) adds restrictions on what employers can say to employees about religion.
Newly Protected “Category”
The new references to “political matters” and “religious matters” are only used in discussing the types of meetings and communications that employers can no longer require employees to be party to.
In addition to the previous protections for off-duty conduct, Section 201-d now prohibits employers from “discharg[ing] from employment or otherwise discriminat[ing] against an individual in compensation, promotion, or terms, conditions or privileges of employment because of an individual’s refusal to:
- attend an employer-sponsored meeting with the employer or its agent, representative or designee, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters; or
- listen to speech or view communications, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.
Exceptions
As with the original Section 201-d employer prohibitions, the amendments include some specific exceptions. Consequently, the law still does NOT prohibit:
- an employer or its agent, representative or designee from communicating to its employees any information that the employer is required by law to communicate, but only to the extent of such legal requirement;
- an employer or its agent, representative or designee from communicating to its employees any information that is necessary for such employees to perform their job duties;
- an institution of higher education, or any agent, representative or designee of such institution, from meeting with or participating in any communications with its employees that are part of coursework, any symposia or an academic program at such institution;
- casual conversations between employees or between an employee and an agent, representative or designee of an employer, provided participation in such conversations is not required; or
- a requirement limited to the employer’s managerial and supervisory employees.
Religious Institutions
There is also a new exception for religious institutions in certain circumstances. The exception references and invokes Title VII’s exemption “with respect to speech on religious matters to employees who perform work connected with the activities undertaken by” a covered religious entity.
Posting Requirement
For the first time, the Legislature has added a notice posting requirement related to Section 201-d. Employers must now “post a sign in every workplace at the location or locations where notices to employees are normally posted, to inform employees of their rights” under this provision of the Labor Law. The notice obligation is not limited to the new captive audience meeting ban. It also includes the statute’s off-duty conduct protections.
Without further guidance from the State on what the posting must include, employers may consider posting the entire text of Labor Law Section 201-d to ensure compliance. You can download a copy here.
Implications for Employers
The amendments took effect immediately. Accordingly, employers should at least consider posting Section 201-d promptly. Notably, under another recent change to State law, the posting must also be made available to all employees electronically.
If your company was otherwise considering holding any meetings to discuss what may now be deemed “political” or “religious” matters, make sure you understand these amendments before proceeding. Legal challenges are expected, as the National Labor Relations Act may be deemed to preempt the New York law, at least with respect to the captive audience meetings related to unionization. However, employers who take the risk of relying on that argument may find themselves in protracted litigation and on the other side of a currently pro-labor National Labor Relations Board.
Note that the law does not say employers cannot discuss political or religious matters. However, employees must be free to choose whether or not to attend or listen to meetings, conversations, or other means of communication in which such subjects are discussed. Unfortunately, employers who initiate such conversations and subsequently have reason to discipline an employee who happened not to participate could face a claim of discrimination/retaliation based on their declining to do so.
For more employment law updates, sign up for the Horton Management Law email newsletter and follow us on LinkedIn.
