On May 12, 2010, Governor Doyle approved 2009 Senate Bill 585, creating a new law, 2009 Wisconsin Act 290, which limits the ability of employers to communicate with employees during a union organizing campaign. The law prohibits most employers from discriminating against any individual on the basis of “declining to attend a meeting or to participate in any communication about religious matters or political matters.” The Bill defines “political matters” to include “political party affiliation, a political campaign, an attempt to influence legislation, or the decision to join or not join, or to support or not to support, any lawful political group, constituent group, or political or constituent group activity.” As a result, the law would apply to employers’ efforts to communicate with employees during a union election campaign. While the law contains limited exceptions for certain non-profit religious associations, political organizations, and whenever a communication is required by law, in most situations, Wisconsin employers will be subject to the law’s prohibitions.
Law Favors Unions Over Employers
The new law will change the dynamics of union elections in favor of unions. Employers commonly meet with their employees to communicate the realities of union membership, facts about union workplaces, and the advantages in their view of remaining union-free. These employee meetings occur in the face of a union organizing campaign during a pre-election campaign period, or regardless of any current union organizing effort. Now, an employer that holds such meetings takes the risk that an employee will file a complaint against the employer. Even if such a complaint isn’t justified, there is nothing in the new law that prevents an employee from filing a frivolous complaint. As a practical matter, the law will likely have a chilling effect on employer communications to employees about unions or other topics an individual employee may deem “political” or “religious.”
Increase in Complaints Expected
Despite an estimate from the Wisconsin Department of Workforce Development (“DWD”) that the new law will result in “less than 5 additional complaints filed each year,” employers can likely expect a significant increase in complaints filed against them as a result of the new law. Last year, 3,242 complainants filed employment discrimination complaints with the DWD involving 5,165 separate bases of discrimination. While nobody can say for sure how many more complaints will be filed in 2010 and 2011, it is fairly certain that the DWD figure of “5 complaints,” which was based on the assumption that the new law only “slightly expands” current protections, was significantly underestimated.
Preempted By Federal Law?
The new law will likely have far-reaching implications in Wisconsin workplaces. While the law appears to have been an effort to discourage employers from pressuring employees to adopt particular religious or political viewpoints, an unintended consequence of the law will be to hamper the ability of employers to communicate with employees, especially during union organizing or election campaigns. The law essentially changes the rules governing union election campaigns to the advantage of unions, and is preempted by the National Labor Relations Act (“NLRA”).
Despite the significance of the legislation and its questionable legality, however, there is little public awareness of the law and press coverage has been minimal. Nevertheless, employers should consider taking steps now to minimize legal exposure. For example, employers should clearly communicate to employees that while attendance and participation at “religious or political” meetings is strictly voluntary, any employee who declines to attend such a meeting is required to work during the duration of the meeting. There are a series of judgment calls an employer will need to make in planning and conducting employee meetings that may involve “political” or “religious” content. We would also anticipate a legal challenge to the new law, which we believe is invalid.
As a leading management side labor and employment firm, we at Michael Best are very concerned about the impact SB 585 may have on our employer clients.