The subject of so-called “captive audience meetings” has been a source of NLRB whiplash for the past few years. This shouldn’t have been the case, given the Supreme Court precedent of NLRB v. Gissel Packing (1969).
The court ruled that the NLRA protects employers’ First Amendment right under Section 8(c) to engage in these meetings, which allow a more level playing field for employers to dispel union fiction, including the reality of what can’t be achieved at the bargaining table, during organizing drives.
Yet here we are.
In 2022, Biden NLRB General Counsel Jennifer Abruzzo issued a memo with the intent of banning these meetings, and in 2024, the Board doubled down with a ruling to that same effect. Very quickly though, times have changed. In early 2025, acting GC William B. Cowen rescinded Abruzzo’s memo while deeming it no longer relevant. We can further expect a more business-friendly version of the Board to officially roll back the Biden Board’s ban.
That’s not even close to the end of the story, though.
A Dozen States Are Complicating Matters
Currently, twelve states – Alaska, California, Connecticut, Hawaii, Illinois, Maine, Minnesota, New York, New Jersey, Oregon, Vermont, Washington – have bans on the books for these meetings.
Each state’s degree of restriction varies, but the laws prohibit employers from compelling workers to attend meetings meant to discuss employers “political” or “religious” opinions, largely on the claim that these meetings could constitute coercion. Employers also can’t take adverse action against workers for declining to attend the meetings.
Additionally, Wisconsin previously banned these meetings in 2010, but that law was quickly nullified. What about the rest of them?
Multiple challenges are in process with arguments including the following: (1) These laws are unconstitutional because they violate employers’ First Amendment rights to free speech (2) Federal preemption, i.e. the NLRA already regulates this employer conduct, so states cannot do so.
Let’s look at where current challenges stand in various states:
California: The California Chamber of Commerce and business groups filed a lawsuit in Dec. 2024 to challenge this law. In Oct. 2025, a federal district judge issued a preliminary injunction on the grounds that the law failed to distinguish between “coercive” and “non-coercive” speech, so the law unlawfully interfered with the employer’s right to use “non-coercive” speech to discuss unionization. In all likelihood, California’s attorney general will appeal to the Ninth Circuit Court of Appeals.
Minnesota and Illinois: Both states’ laws remain in effect following legal challenges from business groups who argued that captive audience meeting bans are unconstitutional. The courts dismissed these cases on the grounds that the groups had no standing.
Connecticut: Business groups including the U.S. Chamber of Commerce filed a lawsuit challenging the law. Unfortunately, that lawsuit has been in limbo since Nov. 2024, when a federal judge heard oral arguments mere days before the NLRB’s ruling of these meetings as unlawful.
Elsewhere, New Jersey expanded their existing ban in Dec. 2025, so it’s clear that states will keep their laws in place until instructed otherwise.
Will change come at the NLRB?
Recently, ex-NLRB Chair Marvin Kaplan weighed in on how much rulemaking change we should expect from a Board with three members.
Through his Bloomberg Law article’s mere title, “Just Two NLRB Member Votes Suffice to Change Rules: Former Chair,” Kaplan spread the message that the tradition of waiting for a five-member Board isn’t necessary before precedent is overturned. Board member James Murphy, who previously served as chief counsel to Kaplan, is likely on board with this thinking.
In other words, the stage is set for revisiting many rulings, including so-called “captive audience” bans, so change is likely coming.
What more should employers take under consideration?
LRI Consulting Services, Inc. CEO and General Counsel Phil Wilson suggests, “Businesses should always remain aware of their states’ laws on these meetings, but that won’t always mean blindly following them. Keep in mind these laws will stay on the books unless they are successfully challenged, and an effective challenge requires a plaintiff who has standing—in other words someone accused of violating the new standard.”
Wilson notes that decisions about whether to challenge a questionable statute or Board decision creates potential legal risk that employers and lawyers should make together. “While the current employer-friendly version of the NLRB may eventually reverse course on the Biden Board’s ban on these meetings, banking on a quick reversal shouldn’t be a game plan.”
