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Does the IPI have a good case against the Worker Freedom of Speech Act? (Updated)

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On July 31, the Democratic governor [JB Pritzker] signed into law legislation limiting employers’ use of “captive audience” meetings where employees are effectively forced to listen to the political or religious views of their boss.

The “Worker Freedom of Speech Act” goes into effect on Jan. 1, 2025, and does not prohibit businesses from holding these meetings, but rather prevents employers from punishing workers if they choose not to attend them. Illinois became the eighth state, joining states like New York and Minnesota, to pass such a law.

The Illinois Policy Institute argue in their federal suit filed last week that the new law infringes the freedom of speech rights of employers and claim the law is too broad — leaving more companies liable to penalties. Under the new law, the Illinois Department of Labor can issue $1,000 fines per violation and employees can sue.

Some employers, such as political organizations and not-for-organizations with 501(c)(4), 501(c)(5), and 501(c)(6) IRS designations, are exempt. The Illinois Policy Institute is a 501(c)(3) and is therefore subject to the law alongside churches and traditional charities.

* From the IPI’s lawsuit…

Plaintiff Illinois Policy Institute (“the Institute”) is a 501(c)(3) nonprofit organization that engages in research related to public policy from a perspective that favors, among other things, civil and personal liberties; effective, efficient, honest, and transparent government; limited government; free markets; and workers’ freedom to choose whether to join a labor union.

The Institute regularly conducts mandatory staff meetings at which the organization’s views on questions of public policy are expressed.

The Act now makes those meetings unlawful.

This restriction on the Institute’s ability to speak to its employees about the very subject matter of the organization’s mission violates the Institute’s right to free speech under the First Amendment. […]

In effect, the Act bans the Institute from communicating with its employees during mandatory meetings about “proposals to change legislation, proposals to change regulations, [and] proposals to change public policy”—even though creating such proposals is one of the principal purposes of the Institute.

The Institute is a research organization that publishes policy research on a variety of political topics, including the state budget, jobs, labor, pensions, education, and criminal justice. […]

At the mandatory meetings and mandatory retreats, the Institute has discussed topics such as the Workers’ Rights Amendment, the proposed real estate transfer tax in Chicago, and the Invest in Kids tax credit scholarships.

They’re essentially arguing that the law is a content-based restriction of employer’s speech, and therefore violates the 1st Amendment.

* From the law’s definition section…

“Political matters” means matters relating to elections for political office, political parties, proposals to change legislation, proposals to change regulations, proposals to change public policy, and the decision to join or support any political party or political, civic, community, fraternal, or labor organization.

* From Littler, a pro-employer labor law firm…

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.

The broader point aside, it’s odd that they didn’t exempt 501(c)(3) organizations.

…Adding… Some union officials I talked with this afternoon claim that IPI is actually exempt and point to this section of the law…

Nothing in this Act… limits the rights of an employer or its agent, representative, or designee from communicating to its employees any information that is necessary for the employees to perform their required job duties

posted by Rich Miller
Tuesday, Aug 13, 24 @ 12:05 pm

Comments

“it’s odd that they didn’t exempt 501(c)(3) organizations”

I don’t think I’ve seen a rationale for not exempting 591(c)(3)s.

And I can’t think of one.

– MrJM

Comment by @misterjayem Tuesday, Aug 13, 24 @ 12:11 pm
I don’t think they have a case.

Like many people, they are confusing the right to speak, with the desire to have an audience.

“The Act now makes those meetings unlawful.”

The act does not make those meetings unlawful. It makes punishing people who don’t want to listen to your politics or religion unlawful. You are still free to have as many meetings as you want to hear yourself talk.

Comment by TheInvisibleMan Tuesday, Aug 13, 24 @ 12:37 pm
Don’t IPI force it’s employees into political and religious viewpoints

Comment by Rabid Tuesday, Aug 13, 24 @ 12:43 pm
This will get overturned - a clear violation of free speech - the exception might be cleverly cloaked in the “prevents employers from punishing workers if they choose not to attend” wording - but that is only applicable to speech with a particular content - namely
“political or religious views”

It might take SCOTUS to get it overturned - but it will

Comment by Donnie Elgin Tuesday, Aug 13, 24 @ 12:59 pm
My standard response is to always disagree with any IPI opinion, a response that seldom misses. But I’m not so sure here.

Over the last decade, the Seventh Circuit has been pretty strict over content-based restrictions. Also, courts have been fairly quick to find NLRA preemption. The federal statute isn’t going to work if states can patchwork their own requirements over it. It’s not a clear-cut case, but it’s not nothing, either.

If the statute doesn’t survive, then imagine the meetings some employers will feel free to have. The General Assembly will have made things so much worse than if had done nothing in the first place.

Comment by Duck Duck Goose Tuesday, Aug 13, 24 @ 1:23 pm
The act does not prohibit speech or prohibit holding meetings — it prohibits punishment for employees not attending. It’s a stretch to claim these is the same thing.

IPI, narrowly, have a good point because their meetings can be deemed “staff training” directly related to their company’s operation.
It’s a stretch for other companies generally to make a similar claim.

Comment by walker Tuesday, Aug 13, 24 @ 1:38 pm
===It’s a stretch for other companies generally===

Perhaps, but this post is about the IPI’s case.

Comment by Rich Miller Tuesday, Aug 13, 24 @ 1:54 pm
The IPI backed Rauner. Hence they are wrong about everything.

Comment by Mike Gascoigne Tuesday, Aug 13, 24 @ 2:19 pm
I think the union officials have a good point here: IPI internal meetings (presumably) aren’t actually about trying to sway or convince their own employees of specific political or religious opinions, but rather strategy meetings to coordinate the agency’s public message — which is what IPI’s employees were hired to do and what they presumably signed up for when they accepted the job. It is a bit odd that 501(c)(3)s were explicitly exempted in the legislation, but I don’t think this is an apples-to-apples comparison with other workplaces either.

Comment by Sterling Tuesday, Aug 13, 24 @ 2:54 pm
The law prohibits employers from taking actions or even threatening an action to induce an employee to attend a meeting. It creates a private right of action for any employee on behalf of themselves or other employees and simultaneously requires the Department of Labor to investigate any allegations. A lawsuit or DOL investigation will be fact specific. Companies will have to defend a lawsuit in order to even claim it was an exempt meeting.

Comment by thoughts Tuesday, Aug 13, 24 @ 3:26 pm
To the update, I suspect that problematic employers will attempt to get around this law by adding a duty to the job description for each of their employees that they will attend all-hands training and strategy sessions to learn, refine, and protect the company’s “shared values” and reputation, or some similarly broad and subjective language.

Comment by thechampaignlife Tuesday, Aug 13, 24 @ 4:49 pm
Personally, I think IPI (and closely similar organizations) have a decent case. After all, that is their entire purpose in life, to make political arguments and influence political decisions / decision makers. As such, one of their primary tools, discussion with / direction of employees, is being taken away from them.

IPI, which espousing a perceived public good [which is loosely the purpose of a c(3)], is also different from other “charities” in that a lot of other charities have a non-political purpose, such as helping a specific purpose.

But a number of these “charities” also attempt to sway public opinion using political means. You could use also IPI’s arguments for an organization like Planned Parenthood which is a c(3) [note: their antithesis Right to Life is a c(4)], to name one example.

Now it may not become an issue because, like IPI, those types of organizations are usually composed of true believers in whatever cause the organization espouses and would likely not have an issue with said meetings.

Personally, I think it may be a law created with good intentions, but likely to get somewhat gutted by the judicial branch.

Or maybe the judiciary will say the problem with IPI and similar organizations is being a c(3) when they should be one of the other sub-categories such as a c(4) that was exempted by the bill.

Be interesting to see which approach / arguments the various courts decide is the legal nexus to make a decision on.

Comment by RNUG Tuesday, Aug 13, 24 @ 5:01 pm
= Nothing in this Act… limits the rights of an employer or its agent, representative, or designee from communicating to its employees any information that is necessary for the employees to perform their required job duties=

That still puts an undue burden on the employer, to have to inform employees and change, job descriptions, etc., etc if they’re particular jobs do require a religious or political related duty. A requirement that would not be needed absent this law. So you’re still running into a first amendment issue based on content.

Comment by Donnie Elgin Tuesday, Aug 13, 24 @ 6:25 pm