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As the National Labor Relations Board (the Board or NLRB) still lacks a quorum with President Donald Trump’s Board member nominations pending, it is unable to adjudicate disputes and render decisions under the National Labor Relations Act (NLRA or the Act). Consequently, some states have stepped in to <a href="https://www.thebargainingtableblog.com/blogs/preemption-what-preemption-new-york-bill-attempts-to-supplant-the-nlrb/" target="_blank" rel="noreferrer noopener">fill that gap with legislation</a>, even when it is likely <a href="https://www.thebargainingtableblog.com/blogs/oh-that-preemption-national-labor-relations-board-acting-general-counsel-responds-to-state-legislation-that-seeks-to-supplant-the-boards-jurisdiction/" target="_blank" rel="noreferrer noopener">contrary to federal law</a>. Now, as the Board looks to take a more employer-friendly direction, states have turned their attention to captive audience meetings.

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During a union election drive, both employers and the union try to pitch their cases to the employees. During this process, employers may utilize a “captive audience” meeting. These are employer-sponsored meetings held during work hours, allowing employers to speak directly to employees. In these meetings, employers present their views on unionization and pitch how they feel about union organizing. These meetings are often used as a persuasive tool to encourage employees to vote against unionization. However, because these meetings are mandatory, unions have &nbsp;pushed back on their legality.

In 2024, the Democrat-majority Board banned captive audience meetings in <a href="https://apps.nlrb.gov/link/document.aspx/09031d4583e96e24" target="_blank" rel="noreferrer noopener">Amazon.com Services LLC</a>, deciding, instead, that employers can have meetings regarding union organization, but they must be voluntary. Now, with the president’s nominees likely flipping the Board to a Republican majority, that decision may be reversed. In response, some states have moved to codify the Amazon decision.

On September 3, New Jersey Gov. Phil Murphy signed <a href="https://legiscan.com/NJ/bill/A4429/2024" target="_blank" rel="noreferrer noopener">legislation</a> prohibiting employers from holding mandatory meetings with employees regarding union organizing. The measure expands New Jersey’s existing prohibitions on mandatory meetings to discuss political or religious matters.

New Jersey isn’t the only state addressing this issue. It joins several other states, including California, New York, Illinois and Washington, that ban employers from requiring attendance at meetings about religious, political or union organizing issues. New Jersey’s law mirrors the Amazon decision, allowing employer meetings discussing labor organizations but making it clear that such meetings can only be voluntary.

However, there are still problems with the validity of such statutes since they are likely preempted by the NLRA. Specifically, the NLRA preempts state law with respect to conduct that the act “protects, prohibits, or arguably protects or prohibits.”

On August 15, Board Acting General Counsel William Cowen issued a <a href="https://www.nlrb.gov/news-outreach/news-story/acting-general-counsel-statement-on-potential-state-legislation-regulating" target="_blank" rel="noreferrer noopener">statement</a> asserting that state efforts to legislate labor-management relations are likely preempted by federal law. Cowen is following up on that statement; on September 12, his office <a href="https://www.nlrb.gov/news-outreach/news-story/nlrb-files-lawsuit-against-the-state-of-new-york-to-protect-agencys-0" target="_blank" rel="noreferrer noopener">sued</a> to block a New York law that would allow the state to help adjudicate private-sector labor disputes. Captive audience meetings also should fall squarely within the conduct preempted by the NLRA due to the Amazon decision prohibiting such meetings. Therefore, it would be no surprise if Trump’s NLRB similarly sues to block New Jersey’s captive audience meeting law. &nbsp;

New Jersey’s efforts to regulate captive audience meetings reflect a broader trend of states encroaching on the federal authority of the NLRB. There will likely be challenges to this law at the state level but, at the federal level, employers should be aware that Amazon is still Board precedent until the Board regains a quorum and overturns the decision. Therefore, employers should be wary of holding any mandatory meetings with their employees while this precedent remains in effect.

The BakerHostetler Labor Relations Team will closely monitor these developments and share timely updates as the situation evolves.

‘Preemption: You Again?’: New Jersey Moves to Ban Captive Audience Meetings as the NLRB Initiates Its Counterattack on Recent State Labor Statutes