Are Connecticut's 2019 captive-audience bills preempted by federal labor law, or could the state defend them?

Plain-English summary

Senate Republican Leader Len Fasano asked AG William Tong to evaluate two 2019 bills aimed at the same workplace problem from different angles. SB 64, a captive-audience bill, would have made it unlawful for employers to require employees to attend meetings whose primary purpose was to convey the employer's view on political or religious matters, including the decision to join a union. That bill was substantively identical to HB 5473, which the prior AG (Jepsen) had analyzed in 2018 and concluded was likely preempted by the National Labor Relations Act. Tong adopted that earlier opinion as to SB 64 and pointed Senator Fasano to it.

SB 440 took a different route. Rather than ban captive-audience meetings outright, it amended Connecticut's existing employee-free-speech statute, Conn. Gen. Stat. § 31-51q, to define the protected constitutional rights to include "the right not to be required to listen to speech," and to make discipline or discharge for exercising that right (by walking out of an employer's political or religious meeting, for example) a basis for damages. Tong concluded SB 440 read as a generally applicable employee-protection law of the kind the Supreme Court has repeatedly said survives NLRA preemption, alongside child-labor laws, minimum-wage laws, and the like. He acknowledged the question was not free from doubt, but committed his office to defending SB 440 if it became law.

The opinion also illustrates how Tong distinguished an unlawful-speech-meeting ban (SB 64) from a lawful right-to-walk-out cause of action (SB 440). The first regulated conduct that NLRA section 8(c) treats as protected employer speech; the second regulated retaliation against an employee's exercise of constitutional rights, which is traditional state police-power territory.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Connecticut did pass a captive-audience law in 2022 (Public Act 22-24), and that law and similar statutes in other states are now in active federal litigation over NLRA preemption. Anyone working on this area today should track the post-2022 statutory text and the federal cases.

Common questions

Q: What is captive-audience legislation?
A: A state law that limits employers' ability to compel employees to attend meetings whose purpose is to share the employer's views on union organizing, politics, or religion. The "captive audience" label points to the use employers have when attendance is mandatory and the meeting is on the clock.

Q: How is SB 440 different from SB 64?
A: SB 64 banned the meeting itself. SB 440 left employers free to hold whatever meetings they wanted but said you cannot punish an employee for refusing to attend or walking out, by tying that protection to constitutional free-speech and free-association rights under the existing § 31-51q statute. The first regulates the speech event; the second regulates retaliation.

Q: Why did the AG think SB 440 was defensible?
A: Because of how the Supreme Court has framed the limits of NLRA preemption. Generally applicable laws that protect workers (minimum wage, child labor, antidiscrimination) are not preempted, even when they affect labor-management dealings. Linn v. United Plant Guard Workers (defamation), Farmer v. United Brotherhood of Carpenters (intentional infliction of emotional distress), and International Union v. Russell (malicious interference with employment) all carved out generally applicable state torts from preemption. SB 440's amendment of an existing constitutional-rights statute looked like that kind of carve-out.

Q: What does NLRA section 8(c) do?
A: It protects noncoercive employer speech about union organizing from being treated as an unfair labor practice. The 2018 opinion (which Tong adopted for SB 64) said section 8(c) and the Garmon / Machinists doctrines together preempt a flat ban on captive-audience meetings.

Q: What is the "right not to listen" the AG cited?
A: The First Amendment line from Hill v. Colorado, 530 U.S. 703 (2000), and Frisby v. Schultz, 487 U.S. 474 (1988), recognizing government's interest in protecting unwilling listeners from speech they cannot avoid. SB 440 invoked that doctrine to give workers a state-level right not to be a captive audience.

Q: Did the AG promise SB 440 would survive a federal challenge?
A: No. He said it was "defensible" and that his office would defend it. There is a difference between predicting victory and committing to litigate the case.

Background and statutory framework

Connecticut's § 31-51q is one of the strongest state-level free-speech-at-work statutes in the country. Enacted in 1983, it gives employees a damages cause of action against employers (including the State and its political subdivisions) who discipline or discharge them for exercising rights protected by the First Amendment or article I §§ 3, 4, or 14 of the Connecticut Constitution. Trusz v. UBS Realty Investors, 319 Conn. 175 (2015), confirmed that the statute protects speech in private workplaces, not just state employment, and applies the Connick-Pickering balancing framework with a Connecticut twist.

NLRA preemption runs through two doctrines built up by the U.S. Supreme Court since the 1950s. Garmon preemption (from San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)) keeps states out of conduct the NLRA actually or arguably regulates. Machinists preemption (from Lodge 76, 427 U.S. 132 (1976)) keeps states out of conduct Congress meant to leave unregulated. Both have built-in escape valves for laws of "deeply rooted local feeling and responsibility" (Garmon, 359 U.S. at 244) and for general police-power regulation of the employment relationship (Metropolitan Life Ins. Co. v. Massachusetts).

Tong's distinction between SB 64 and SB 440 lined up cleanly with that framework. SB 64 directly regulated speech the NLRA arguably protects, putting it in the Garmon / Machinists zone. SB 440 was a generally applicable employee-protection amendment, fitting more naturally in the Metropolitan Life / Linn / Farmer line of cases.

Citations and references

Statutes and bills:
- Senate Bill 64 (2019), An Act Concerning Captive Audience Meetings
- Senate Bill 440 (2019), An Act Protecting Employee Freedom of Speech and Conscience
- Conn. Gen. Stat. § 31-51q
- U.S. Const. amend. I; Conn. Const. art. I, §§ 3, 4, 14

NLRA preemption framework:
- San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959)
- Lodge 76, Int'l Ass'n of Machinists v. Wisconsin ERC, 427 U.S. 132 (1976)
- Chamber of Commerce v. Brown, 554 U.S. 60 (2008)
- Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985)
- Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180 (1978)

General-applicability carve-outs:
- Linn v. United Plant Guard Workers, 383 U.S. 53 (1966)
- Farmer v. United Bhd. of Carpenters, 430 U.S. 290 (1977)
- Int'l Union, United Auto. Workers v. Russell, 356 U.S. 634 (1958)

Connecticut framework:
- Trusz v. UBS Realty Investors, LLC, 319 Conn. 175 (2015)
- Sarrazin v. Coastal, Inc., 311 Conn. 581 (2014)
- Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357 (2015)

Right-not-to-listen authority:
- Hill v. Colorado, 530 U.S. 703 (2000)
- Frisby v. Schultz, 487 U.S. 474 (1988)

Prior AG opinion:
- A.G. Op. No. 2018-02, 2018 WL 2215260 (April 26, 2018)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2019/2019-03_sen_fasano.pdf?rev=dcd267160cbc40bf89bd2e1063c876dc

Original opinion text

55 Elm Street
P.O. Box 120
Hartford, CT 06141 -01 20

WILLIAM TONG
ATTORNEY GEN ERAL

Office of the Attorney General

(860) 808-5319

State of Connecticut
May17,2019

BY EMAIL AND HAND DELIVERY
The Honorable Leonard A. Fasano
Senate Republican Leader
Legislative Office Building, Suite 3400
300 Capitol Avenue
Hartford, CT 06106-15 91
Dear Leader Fasano:
You have asked for a formal opinion on whether Senate Bill 64, captioned
An Act Concerning Captive Audience Meetings (SB 64), and Senate Bill 440,
captioned An Act Protecting Employee Freedom of Speech and Conscience (SB
440), are preempted by the federal National Labor Relations Act (NLRA) and
therefore unconstitutional under the Supremacy Clause of the U.S. Constitution.
As you note, Attorney General George Jepsen issued an opinion last year
on proposed legislation, House Bill 54 73 (2018), that was substantively identical
to SB 64. That opinion concluded that a court would likely strike down as
preempted under the NLRA the proposed legislation's prohibition on employers
requiring employees to attend employer-sponsored meetings if the primary
purpose of the meeting is to communicate the employer's opinion concerning the
decision to join or supp01i a labor organization. A.G. Op. No. 2018-02, 2018 WL
2215260 (April 26, 2018) (2018 Opinion). We stand behind that opinion, and for
purposes of your inquiry as to SB 64, we refer you to it.
Senate Bill 440, however, is materially different from the proposed
legislation that was the subject of the 2018 Opinion. As a generally applicable
state law aimed at protecting the constitutional rights of all Connecticut
employees, the law, if enacted, can be fairly defended as outside the scope of
NLRA preemption as a1iiculated by the comis.

An Affirmative Action/Equal Opportunity Employer

Hon. Leonard A. Fasano
Page 2

Background
Senate Bill 440 would amend and clarify the scope of § 31-51 q of the
General Statutes; it does not create a new statute from whole cloth. Presently,
§ 31-51 q imposes liability for damages on an employer, including the State and its
political subdivisions, who subjects an employee to discipline or discharge for the
employee's exercise of rights protected under the First Amendment of the U.S.
Const. and§§ 3, 4 and 14 of Article I of the Conn. Const. Section 31-51q carves
out from such liability employee activity that substantially or materially interferes
with the employee's bona fide job performance or the working relationship
between the employee and the employer. Conn. Gen Stat. § 31-51 q; see generally
Trusz v. UBS Realty Investors, LLC, 319 Conn. 175 (2015).
Senate Bill 440's proposed amendments to § 31-51q would do several
things. First, it would expressly define the scope of the constitutional rights
protected under the statute to include "the right of freedom of speech, freedom of
religion and freedom of association, and shall include the right not to be required
to listen to speech." SB 440, § l(a)(3).
Second, it would impose liability on an employer for damages arising
from discipline or discharge in derogation of such constitutional rights, including
discipline or discharge related to the employee's exercise of such rights by
refusing to attend an employer-sponsored meeting or to listening to speech or
view communications, the primary purpose either of which is to communicate the
employer's opinion on religious or political matters. Id.,§ l(b).
Third, it would make clear that certain employer activities are not
prohibited, including communications required by law, communications
necessary for employees to perform their duties, certain communications at
institutions of higher education, casual conversations, and communications
limited to managerial and supervisory employees. Id., § 1(c).
Discussion
Under the Supremacy Clause of the U.S. Constitution, state law that is
preempted by a congressional enactment must give way. Sarrazin v. Coastal,
Inc., 311 Conn. 581, 592 (2014). As discussed in the 2018 Opinion, U.S.
Supreme Court precedent holds that Congress, through the enactment of the
NLRA, has preempted state law in two ways.

Hon. Leonard A. Fasano
Page 3

First, "Garmon pre-emption" precludes "state interference with the
National Labor Relations Board's interpretation and active enforcement of the
integrated scheme of regulation established by the NLRA." Golden State Transit
Corp. v. City of Los Angeles, 475 U.S. 608,613 (1986) (quotation marks omitted);
see San Diego Bldg. Trades Council, Millmen 's Union, Local 2020 v. Garmon,
359 U.S. 236 (1959). Garmon preemption prohibits states from regulating
activity that "the NLRA protects, prohibits, or arguably protects or prohibits."
Wisconsin Dept. of Industry, Labor and Human Relations v. Gould Inc., 475 U.S.
282, 286 (1986). Second, "Machinists pre-emption" precludes states from
regulating conduct that Congress intended to remain umegulated and left to "the
free play of economic forces." Lodge 76, Intern Ass 'n of Machinists and
Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations Commission,
427 U.S. 132, 140 (1976) (quotation marks omitted); accord Chamber of
Commerce of the US. v. Brown, 554 U.S. 60, 65 (2008).
As the 2018 Opinion also noted, the scope of NLRA preemption is not
unlimited. In particular, it observed that "[t]he scope of preemption under the
NLRA leaves intact broad state law authority over many issues that touch upon
the employer-employee relationship." 2018 Opinion, at 5 (citing Metropolitan
Life Ins. Co. v. Massachusetts, 471 U.S. 724, 757 (1985)). As the Supreme Court
has indicated, NLRA preemption doctrine "does not sweep away state-court
jurisdiction over conduct traditionally subject to state regulation without careful
consideration of the relative impact of such a jurisdictional bar on the various
interests affected." Sears, Roebuck & Co. v. San Diego County Dist. Council of
Carpenters, 436 U.S. 180,188 (1978). Indeed, as the Court in Garmon itself
stated, preemption does not extend to "where the regulated conduct touched
interests so deeply rooted in local feeling and responsibility that, in the absence of
compelling congressional direction, we could not infer that Congress had
deprived the States of the power to act." Garmon, 359 U.S. at 244.
For this reason, the Court has repeatedly stated that "'States possess
broad authority under their police powers to regulate the employment relationship
to protect workers within the State. Child labor laws, minimum and other wage
laws, laws affecting occupational health and safety ... are only a few examples.'"
Metropolitan Life, 471 U.S. at 754 (quoting DeCanas v. Bica, 424 U.S. 351, 356
(1976)). Similarly, the Court has rejected preemption claims for state laws of
general applicability that protect employees from a range of employer conduct.
See, e.g., Linn v. United Plant Guard Workers of America, 383 U.S. 53, 62 (1966)
(defamation); Farmer v. United Bhd. of Carpenters and Joiners ofAmerica, Local

Hon. Leonard A. Fasano
Page 4

25, 430 U.S. 290, 302-03 (1977) (infliction of emotional distress); International
Union, United Auto., Aircraft and Agr. Implement Workers of America (UAWCIO) v. Russell, 356 U.S. 634 (1958) (malicious interference with lawful
occupation).
The evident purpose of § 31-51q, as well as SB 440's proposed
amendments, is to provide a cause of action for employees who have suffered
adverse employment actions because of the exercise of their constitutional rights
to free speech and conscience. SB 440's amendments would advance this
purpose by amending and clarifying an existing statute and expressly defining the
rights protected to include "the right to freedom of speech, freedom of religion
and freedom of association, and shall include the right not to be required to listen
to speech." SB 440, § l(a)(3). The U.S. Supreme Comi has expressly recognized
that the First Amendment permits government to protect the interest of the
unwilling listener who cannot avoid speech. Hill v. Colorado, 530 U.S. 703, 71617 (2000); Frisby v. Schultz, 487 U.S. 4 74, 487 (1988).
For these reasons, we view SB 440 as materially different from the
proposed legislation that was the subject of the 2018 Opinion. As part of the
larger framework of§ 31-51q, SB 440's amendments would comprise a generally
applicable state law aimed at protecting the constitutional rights of all Connecticut
employees. In this sense, a strong argument can be made that it falls beyond the
reach of NLRA preemption and is more fairly characterized as akin to the kind of
generally applicable, minimum standards legislation that the Supreme Court has
concluded states retain the power to enact.
This is not to say that the question is free from doubt. We acknowledge
that SB 440 could face a preemption challenge in the courts. But we are also ever
mindful that enacted legislation carries with it a strong presumption of
constitutionality. Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn.
357, 405 (2015). In light of that presumption, and the sound arguments that can
be made in support of the view that SB 440 is not preempted, we conclude that it
is defensible, and if enacted, this Office stands ready to defend it.
Very truly yours,
t