Minnesota Statute 181.531 Employer-Sponsored Meetings or Communication (the “Act”), is an anti-captive audience law which prohibits employers from taking “adverse employment action against an employee” who declines to participate in employer-sponsored meetings or  communications where the employer’s opinion “about religious or political matters” are discussed. Under the Act’s terms employees may file private lawsuits if they face retaliation for refusing to attend employer-sponsored meetings where the employer’s political, religious, or union views are discussed.

In Minnesota Chapter of Associated Builders and Contractors (“MNABC”) et al v. Keith Ellison et al, MNABC and two other associations sued Minnesota Attorney General Keith Ellison (“Ellison”), the Department of Labor and Industry (DOL) Commissioner Nicole Blissenbach (“Blissenbach”), and Governor Tim Walz (“Walz”) (collectively referred to as  “Defendants”) to enjoin enforcement of the Act, claiming it regulates employer speech in violation of the First Amendment and was preempted by the federal National Labor Relations Act (NLRA). Defendants moved to dismiss asserting sovereign immunity pursuant to the Eleventh Amendment of the U.S. Constitution and lack of subject matter jurisdiction. The district court denied the Defendants’ motion, relying, in part on an exception to the State’s sovereign immunity. Defendants appealed to the Eighth Circuit Court of Appeals.

In considering the question of whether employers could enjoin the State’s enforcement of the Act, the court discussed the State’s general immunity from suit under the “Eleventh Amendment and the doctrine of sovereign immunity,” and the narrow exception relied upon by the district court which allows private parties, including employers, to seek an order preventing enforcement of a state law that is contrary to federal law. To fall within the exception, a state official must have a “connection to enforcement,”  threaten enforcement, and be poised to commence proceedings.

The Court found that as Defendants had not undertaken enforcement of the Act, there was no current cause of action.  With respect to Walz and DOL Commissioner Blissenbach, the Court found both were acting in their “administrative and ministerial” capacities which lacked a sufficient connection with enforcement to remove them from immunity provisions of the Eleventh Amendment.   Walz’s power to appoint and remove agency heads and the DOL’s role limited to development of educational posters were not enforcement actions. The Court further noted that Walz’s potential power to enforce by appointment of outside counsel had not occurred.

The Court found that Ellison’s duty to enforce was not the same as threatening and commencing enforcement. Further, Ellison’s declaration attesting to “no present intention to commence” enforcement was a sufficient disclaimer of an intent to enforce the Act. The Court held that MNABC did not have standing to pursue a cause of action and the district court lacked subject matter jurisdiction to hear the case.  As a result, the complaint was dismissed.

While this case involved private-sector employers who fall within the scope of the NLRA, under this ruling, Minnesota’s captive audience prohibitions, which do not distinguish between private and public employers, remain in effect.  If you or your organization have questions regarding application of the captive audience ban to employer-sponsored communications contact Wiley Reber Law for advice that works.