Buelow Vetter
Legal Update
Buikema Olson & Vliet, LLC
Law Prohibiting Employers from Holding “Captive Audience”
Meetings Declared Unconstitutional
November 16, 2010
For over a half-century, the National Labor Relations Act (NLRA) has protected the rights of employers
to hold paid, mandatory meetings with their employees to discuss unions and unionization. These meetings, termed “captive-audience meetings,” have primarily been used by employers facing union organizing efforts in an attempt to combat the tactics used by unions to solicit union authorization cards from
employees.
In May 2010, Wisconsin Governor Doyle made Wisconsin the second state in the country to pass a law
prohibiting these “captive audience meetings.” Governor Doyle signed into law an amendment to the
Wisconsin Fair Employment Act (WFEA) that made it illegal for an employer to discriminate against an
employee (or threaten to do so) because the employee declines to attend an employer-sponsored meeting
or to participate in any communication with the employer, the primary purpose of which is to communicate the opinion of the employer about religious or political matters. The law defines “political matters” to
include “the decision to join or not to join, or to support or not support, any lawful...constituent group...
or constituent group activity.” The term “constituent group” is defined to include labor organizations. The
end result of this action was to eviscerate the rights of employers to respond to union organizing tactics
through the use of captive audience meetings.
On September 3, 2010, Wisconsin Manufacturers & Commerce (WMC) and Metropolitan Milwaukee
Association of Commerce (MMAC) filed a federal lawsuit against the State of Wisconsin and the Department of Workforce Development seeking to have the WFEA amendment declared unconstitutional.
Among other arguments, the plaintiffs claimed that the amendment was preempted by the federal NLRA.
The NLRA expressly protects the right of employers to hold mandatory meetings for purposes of communicating their views about whether employees should join or support a labor organization. This protection has been interpreted to allow an employer to require its employees to attend meetings on the
employer’s premises during work time, in which the employer expresses its opposition to unionization.
On November 15, 2010, the U.S. District Court for the Eastern District of Wisconsin entered a Judgment and Order declaring the WFEA “captive audience” amendment unconstitutional, because the
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amendment is preempted by the NLRA under the Supremacy Clause of the U.S. Constitution. Further,
the Judgment and Order permanently enjoins the State of Wisconsin from enforcing or seeking to enforce
the amendment.
This is a victory for employers facing union organizing efforts who seek to invoke their rights, granted
under the NLRA, to respond to said efforts.
If you have any questions regarding this matter, please contact Joel S. Aziere at (262) 364-0250 or
[email protected], or Brian J. Waterman at (262) 364-0262 or [email protected].
Buelow Vetter Buikema Olson & Vliet, LLC
20855 Watertown Road
Suite 200
Waukesha, Wisconsin 53186
phone: 262 364 0300
fax: 262 364 0320
e-mail: [email protected]
website: www.buelowvetter.com
This Legal Update is intended to provide information only on
general compliance issues and should not be construed as legal
advice. Please consult an attorney if you have any questions
concerning the information discussed in this Legal Update.
In order to comply with Treasury Circular 230, we are required to
inform you that any advice that we provide in this Legal Update
concerning federal tax issues is not intended or written to be
used, and cannot be used, to avoid federal tax penalties, or to
promote, market, or recommend to another person any tax
advice addressed herein.
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