Search thinkILG.com
Employment Posters Guide

Download the 2018 employment posters required by State and Federal law for free.

Login
« Focus on the What . . . Let Us Handle the How | Main | You Know You Should Do It But . . . »
Tuesday
Jun222010

Don't Choke on New Gag Rule - Part 2


We previously told you about S.B. 519, the new gag rule on Oregon employers. A federal court has ruled on a lawsuit brought by business. That ruling and what might happen next are discussed below.

Don't Choke On New Gag Rule Part 1 discussed the Oregon employer gag rule and the required poster Oregon's Labor Commissioner refused to provide (you must still display a poster however). The gag rule prohibits you from requiring employees to attending meetings where you share your religious or political opinions (code phrase for anti-union opinions).

A business coalition lead by Associated Oregon Industries (AOI) and the U.S. Chamber of Commerce (US Chamber) brought suit in federal court challenging the Oregon law on grounds it is pre-empted by federal labor laws. Both the Oregon Labor Commissioner and the AFL-CIO were named in the suit.

[In full disclosure – I currently serve on both the AOI board and AOI executive committee and previously served for six years on the US Chamber board of directors.]

The court dismissed the business suit on procedural grounds without addressing the merits of the case. The Labor Commissioner stated he had no intention to enforce the new law. The union, however, would not agree not to bring claims against employers. The court ruled that the law cannot be challenged in federal court until a suit is filed under the law against an Oregon employer.

The Oregon gag rule was adopted at the request of unions. They hope that Oregon will be the first of many states to adopt employer gag rules. They wanted the Oregon federal lawsuit to move forward so that the 9th Circuit Court of Appeals could be the first appellate court to rule on the legislation (the 9th Circuit is historically not favorable to business). Until there is a test case against an Oregon employer, that will not happen.

Although national organizations want to set a legal precedent for other states, Oregon employers are worried about the Oregon law. Suit in state court may be the next step.

The Oregon Constitution has very strong freedom of speech protections. Stronger than the U.S. Constitution. Remember the poster mentioned above? That may be a key to challenging the law in state court. Where the prohibition on required meetings cannot be challenged until there is a suit against an employer, all employers must post notice of the law. That is, employers are compelled to speak. If that compelled speech is about a law that is unenforceable, then business groups may be able to challenge the law in state court.

It is a clever argument. The way to challenge the prohibition on mandatory meetings is by challenging the requirement that employers inform employees of that prohibition. The compelled speech, the required poster, is thus a violation of employers' free-speech rights if the prohibition on mandatory meetings itself violates employers' free-speech rights.

Stay tuned. We will keep you posted on further developments as they occur.

 

Note - Unless you want to be a test case, we recommend that you go ahead and post the required notice. Since the state Labor Commissioner refused to create a poster (perhaps we know why in light of the argument for a state suit challenging the bill), you can use the poster we created, at no charge. Use the link below to download.

            New Oregon Gag Rule Poster

 

 

PrintView Printer Friendly Version

EmailEmail Article to Friend

Reader Comments

There are no comments for this journal entry. To create a new comment, use the form below.

PostPost a New Comment

Enter your information below to add a new comment.

My response is on my own website »
Author Email (optional):
Author URL (optional):
Post:
 
All HTML will be escaped. Hyperlinks will be created for URLs automatically.