For over 75 years, the National Labor Relations Board and courts (including the U.S. Supreme Court) have held the right of employees to make informed choices about unions is best served when employers share competing information—the side of the story employees don’t typically hear when organizers are soliciting them to sign union cards, petitions, or cast a vote.

On July 31, 2024, Illinois Governor J. B. Pritzker signed into law Illinois Senate Bill 3649 (“SB 3649” or the “Act”). The new law is scheduled to take effect on January 1, 2025, and is aimed at prohibiting employers from discharging or disciplining employees who refuse to attend mandatory employer-sponsored meetings. In enacting this law, Illinois has joined a handful of states with similar legislation, including Connecticut, Hawaii, Maine, Minnesota, New York, and Oregon.

These and similar laws have been found to be preempted by the National Labor Relations Act and/or violate the First Amendment. Past cases and cases currently winding their way through the courts highlight their vulnerability. In 2010, a Wisconsin law nearly identical to Illinois SB 3649 was struck down in Metropolitan Milwaukee Association of Commerce v. Doyle, Case No. 10-C-0760 (E.D. Wisc. 2010). This week, following a decision by the Eleventh Circuit, enforcement of a Florida law barring employers from holding mandatory meetings endorsing certain views the state found offensive was permanently enjoined. Honeyfund.com Inc. v. Desantis, 4:22cv227 (N.D. Fla 2024).

Analysis of Illinois SB 3649

The stated legislative intent for SB 3649 is to provide “protections from mandatory participation in employer-sponsored meetings if the meeting is designed to communicate an employer’s position on religious or political matters,” as “[e]mployees should not be subject to intimidation tactics, acts of retaliation, discipline, or discharge from their employer for choosing not to participate in employer-sponsored meetings.” The Act includes in the definition of “political matters” a reference to an employee’s decision to “support any …labor organization” and is clearly intended to prohibit employer-sponsored meetings about unions (what unions refer to as “captive audience meetings.”).

A. Substance and Process

SB 3649 broadly defines the topics prohibited in mandatory meetings:

Moreover, the Act considers “voluntary” to mean the meeting is not “incentivized by a positive change in any employment condition” or “taken under threat of a negative change in any employment condition for non-attendance.” Thus, offering incentives, issuing threats, or imposing discipline to influence an employee’s choice to attend or decline to attend a meeting or to receive a communication from the employer regarding the employer’s opinion on religious or political matters, as defined above, is prohibited by the law.

B. The Procedure

SB 3649 provides an administrative agency procedure for complaints brought under the Act, to be handled by the Illinois Department of Labor (“IDOL”). The interested party, which may include labor unions, submits a complaint to the IDOL describing the violation and naming the employer alleged to have violated the Act. The IDOL then sends notice of the complaint to the named party, and the named party has 30 days after the receipt of the notice of the complaint to contest or cure the alleged violation. If, within 180 days, the IDOL has not resolved the contest and cure period or issued a right to sue letter, and the parties have not extended the time to cure the violation and resolve the complaint, the interested party may initiate a civil action for penalties.

Further, SB 3649 requires employers to post a notice informing employees of their rights under the Act, within 30 days after it takes effect.

C. Remedies for Employees and Consequences for Employers

SB 3649 purports to allow aggrieved employees—whether by one or more employees for and on behalf of themselves and other employees similarly situated—to bring a civil action no later than one year after the date of the alleged violation. Available remedies include:

• Injunctive relief;
   
• Reinstatement to the employee’s former position or an equivalent position;
   
• Back pay;
   
• Reestablishment of any employee benefits, including seniority to which the employee would otherwise have been eligible if the violation had not occurred;
   
• Any other appropriate relief as deemed necessary by the court to make the employee whole; and
   
• Prevailing employee reasonable attorney’s fees and costs.

The Act also purports to confer power upon the IDOL to impose a civil penalty of $1,000 for each violation, with each employee who is subject to a violation constituting a separate violation. In other words, if an employer was found to have violated the Act with respect to ten employees on two separate meetings, the employer would be required to write a check to the IDOL for $20,000.

Potential Implications of SB 3649

Recent state laws similar to SB 3649 have faced legal challenges, and it is anticipated that such laws will likely be struck down in the end, even if the U.S. Supreme Court has to swing the final axe. For example, in New York, a New York District Court enjoined enforcement of legislation limiting employer speech during organizing campaigns. There, the District Court granted a temporary restraining order on the grounds that the legislation as written was facially invalid because it violated the First Amendment in constituting “a viewpoint-based law that discriminates against speech based on the ideas or opinions conveyed.”

Further, Section 8(c) of the National Labor Relations Act provides specific protection for employer speech, stating that “[t]he expressing of any views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit.” Consequently, SB 3649 may also face challenges on the grounds that it is preempted, insofar as it is contrary to Section 8(c) and interferes with national labor policy (an argument Littler successfully made in Metropolitan Milwaukee Association of Commerce almost 15 years ago). In light of the unresolved questions about the legality of SB 3649, employers are forced to choose whether to comply or challenge the new law on constitutional grounds, including federal preemption and First Amendment concerns.

Littler’s Workplace Policy Institute (WPI) is closely monitoring the situation. We will follow legislative developments and provide updates on SB 3649 and its implications for Illinois employers.