WFEA Expands Again: Religious, Political and Union Rights Involved
Labor & Employment Alert 05/19/10 Fred Gants, David B. Kern
On May 12, 2010, Governor Doyle signed into law 2009 Senate Bill 585 ("SB 585"), which provides additional protection to employees under the Wisconsin Fair Employment Act ("WFEA"). It becomes effective on May 27, 2010. The new law prohibits discrimination against an employee who declines to attend an employer-sponsored meeting or participate in any communication with an employer, the primary purpose of which is to communicate opinions about religious or political matters.
Under the new law, discrimination on this basis includes discharging or otherwise discriminating against an employee because the employee declines to attend such a meeting, or threatening to discharge or discriminate against an employee in order to require the employee to attend such a meeting. The law does contain some exceptions, perhaps the most notable of which is that it does not apply if the employer is a non-profit religious association or corporation primarily owned by a religious association, and the primary purpose of the meeting or communication is to communicate the employer's religious beliefs.
It is important to note that "political matters" under the new law are broadly defined to include "the right to join or not to join" a "labor organization." This is significant because we believe that the new law, as it applies to employer speeches and communications regarding labor unions or union organizing, may be found to be preempted by the National Labor Relations Act ("NLRA").
Under the NLRA, private employers facing union organizing campaigns or elections have had the right for years to hold mandatory meetings during work - up to 24 hours before an election - to inform employees about their views on union representation. Such meetings and communications are part of a combination of rights and obligations provided to employees, labor unions and employers during the organizing process. These rights and obligations have emerged under the exclusive jurisdiction of the National Labor Relations Board ("NLRB").
In the United States Supreme Court's landmark decision in Building Trades Council (San Diego) v. Garmon, 359 U.S. 236, 43 LRRM 2838 (1959), the Court held that if conduct is arguably within the scope of rights protected under Section 7 of the NLRA (to join or not join a union) or Section 8 of the NLRA (to bring an unfair labor practice charge, or, in the case of an employer, to communicate about union matters) the State's jurisdiction is displaced. Over 50 years ago, the Supreme Court held that preemption of arguably protected or prohibited conduct is necessary, because the federal labor law envisions a single tribunal, namely the NLRB, regulating and shaping a uniform national labor policy.
In short, if a court challenge is sought, we believe the federal courts may rule that SB 585, as it applies to union organizing, is preempted under the NLRA since it potentially interferes with Section 7 and Section 8 rights.
Practical Guidance for Employers
Private employers in Wisconsin facing union organizing activity or impending union elections will have to decide what their position should be regarding mandatory meetings to discuss their views on labor unions. Employers may still want to discuss their views on unions and write letters to employees about the issue. However, Wisconsin employers who require attendance at meetings to discuss union organizing, and who are faced with employees who refuse to attend, will need to proceed cautiously until there has been a successful challenge to SB 585.