News & Commentary

May 16, 2024

Divya Nimmagadda

Divya Nimmagadda is a student at Harvard Law School.

In Illinois, a bill banning captive audience meetings – titled the “Worker Freedom of Speech Act” – has passed through the state’s Senate and is awaiting action in the House before the General Assembly adjourns in two weeks. The bill would allow workers in the state to skip religious or political meetings, which would include union-related gatherings, without reprimand. Employers found to violate the law would be charged $1,000 per violation and mandated to provide adequate relief to the wronged employee. This bill was originally introduced to Senator Peters by the Illinois AFL-CIO, and the bill’s House sponsor believes there to be sufficient support for it to pass in the coming weeks.

Illinois joins many other states in efforts to regulate or ban captive audience meetings. Since 2022, Oregon, Connecticut, Maine, Minnesota and New York have all passed legislation restricting these types of meetings, while similar measures are pending in 10 other states. Such state level legislation has been met with a variety of legal challenges, with claims that such action violates employers’ First and Fourteenth Amendment Rights as “a form of prohibited viewpoint-discrimination,” and that it is preempted by the NLRA. These states are joined by momentum on this issue at the federal level as well, with Jennifer Abruzzo’s 2022 memorandum asking the Board to review and reverse its stance on the issue and deem it an unfair labor practice.

Yesterday, the Harvard Graduate Students Union, unionized under the UAW, filed a charge with the NLRB, stating that the university’s retaliation against “workplace-related collective action,” and student activists participating in pro-Palestine protests calling for disclosure and divestment was violative of their rights as employees. A Harvard spokesperson commented that the university viewed the encampment and protests as unrelated to student worker working conditions and thereby unprotected under federal law and the HGSU contract. 

The HGSU complaint follows similar actions at other universities – including Brown University and the University of Southern California – and companies – like Alphabet, where a charge alleges that the employer illegally fired employees for participating in a sit-in opposing the company’s contracts with the Israeli government. Members of the U.A.W. 4811 union, representing 48,000 academic workers across the University of California campuses, authorized – with 79% support – the union’s executive board to call a strike in response to the institution’s handling of the protests. The local union president stated, “At the heart of this is our right to free speech and peaceful protest. If members of the academic community are maced and beaten down for peacefully demonstrating on this issue, our ability to speak up on all issues is threatened.”

Like with the captive audience meetings described above, Jennifer Abruzzo has taken a broad stance on what is covered under “protected concerted activity” under the NLRA, stating that “if it’s got a nexus to your working conditions,” it is protected activity. However, the way these charges play out may begin to forecast the scope of matters regarding which workers can take collective action while still maintaining federal labor law protection, and the role unions can and are expected to play.

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