The IL Worker Freedom of Speech Act, or rather, The Freedom to Skip Employer Meetings Act

The dubiously entitled "Worker Freedom of Speech Act" might have been better named as above.

Effective January 1, 2025 all Illinois employers are banned from holding mandatory meetings concerning political or religious matters, or the decision to join or support “any political party or political, civic, community, fraternal, or labor organization.”? Employers may not take any disciplinary action “or any adverse employment action” against an employee for not attending such meetings.? The remedies for dismissal or other violations of the law are reinstatement, injunctive relief, back pay, lost benefits, and attorney’s fees.

The Illinois Department of Labor will be the place to go for complaints and has both investigative and enforcement authority.? Where there is a violation the IDOL has the power to assess a civil penalty of $1,000 for each violation, in addition to seeeking the relief listed above.? Upon request for a right-to-sue letter, an aggrieved individual has up to three years to take an unresolved claim to court.

A notable exception to the mandatory meeting prohibition is Section 35 (4), which refers to training “intended to foster a civil and collaborative workplace or reduce or prevent workplace harassment or discrimination.”? Otherwise the exceptions are the obvious ones, e.g., houses of worship can require meetings to communicate the employer’s religious beliefs, public sector employers can require attendance at meetings to talk about proposals to change legislation or regulations.

This report focuses on the union-related provisions of the law.

For decades the national labor law policy has been to permit mandatory meetings where the employer is presenting its side of the story during union organizing campaigns. In recent years the Biden era National Labor Relations Board has taken a second look. In 2022 its General Counsel issued a memorandum declaring that forcing employees to attend under threat of discipline discourages protected concerted activity, and that the Board should no longer recognize an employer right to conduct mandatory meetings; “…An employer must convey [assurances] in order to make clear that [employees’] attendance is truly voluntary.”

Questions to be answered:

Q.? So if we make it clear that attendance is strongly encouraged but point out emphatically that employees need not attend and will not suffer any consequences for skipping the meeting, are we in compliance?

A.? Yes, provided there are in fact no negative consequences.

Q:? What if we invite the union to come and participate in a joint presentation that requires attendance?

A.? The new law refers to “employer-sponsored” meetings.? If the union accepts the invitation to get its two cents in, it would seem the meeting is no longer just “employer-sponsored”

Q.? Virtually all of our employees work remotely.? Are online presentations “meetings”? under this new law?? And if so, isn’t the “mandatory participation” concept in the statute’s first paragraph sort of tenuous where those on the call are not really involved in the discussion, and even ignoring it?

A. It is true that a Zoom or MS Teams broadcast opens up avoidance options for attendees that don’t exist at in-person meetings.? So yes, “must attend” takes on a fuzzy meaning and discipline for not being “on the call” might be difficult to enforce.? How the call is described by management ahead of time and managed while in progress can lead to liability even if in reality attendees blow it off and are gaming, or on their phones.

Q. If all employers are covered by this law, is an employer with two employees in trouble if one of them, its owner, tells his only employee while at lunch they take together once a week that he thinks unions are not the way to go?

A. It is true that all employers of any size are subject to this law. ?Perhaps the courts and regulations from the IDOL will address scenarios like the one you are suggesting.

Q. Is sending out e mails to employees with the subject “YOU REALLY NEED TO READ THIS” and that presents our criticisms of unionization illegal, if we take note of who opens and does not open the e mails?

A. ?Such communications fall under the law’s “or declines to receive or listen to communications from the employer” clause in Section 15(1). The law does not address actual meetings alone. So the answer is: any disciplinary or adverse employment action based on an employee ignoring the e mail(s) would technically be a violation.

?

Not surprisingly at least one adversarial lawsuit against this new law has been filed in federal court on First Amendment grounds.? Illinois Policy Institute v Illinois Department of Labor et al, F Supp 3rd , Case 24 cv 6976 (N. D. Ill 8/8/24). ?The notion is that the ban on employer speech about “political matters” violates the Constitutional guarantee of freedom of speech. Little emphasis is placed on the mandatory attendance piece; it’s the ban on the speech itself.?