A wave of state-level legislative action on workplace meetings has reached a new milestone, with Delaware and Maryland becoming the latest jurisdictions to limit mandatory employer gatherings on unionization.
Delaware’s House Substitute 1 for H.B. 84 took effect on September 30, with Maryland’s Worker Freedom Act, S.B. 417, following a day later on October 1, bringing the national total to 15 states with such restrictions.
Both laws bar employers from penalizing workers who decline to attend employer-sponsored meetings expressing political or religious views, a category that explicitly includes union-related communications.
Maryland’s statute goes further than Delaware’s, extending its protections to job applicants and authorising substantial administrative penalties against employers found to be in violation.
Neither law bans voluntary meetings outright or prohibits all employer communications regarding unions, and both include carve-outs for legally required disclosures and job-related information.
The two new laws join statutes already in force in Alaska, California, Connecticut, Hawaii, Illinois, Maine, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington, though the broader movement continues to face legal challenges based on First Amendment rights and federal preemption arguments.
At the federal level, the National Labor Relations Board issued a significant ruling on September 23 that strengthens employer protections over privileged workplace investigations, holding in Michigan Education Association, 375 NLRB No. 42, that unions cannot compel disclosure of attorney-client privileged materials through information requests.
The Board dismissed refusal-to-furnish allegations after the union sought investigative reports prepared by the employer’s outside counsel, ruling that once privilege is established, the National Labor Relations Act imposes no disclosure obligation regardless of the union’s stated need or any accommodation the employer might offer.
Critically, the Board rejected applying a traditional balancing test, reasoning that doing so could undermine candid communications between employers and their legal counsel and complicate voluntary compliance with labour and employment law.
The same date brought a second major ruling in Lion Elastomers LLC, 375 NLRB No. 41, in which the Board restored the Wright Line burden-shifting standard for evaluating employee misconduct that occurs during otherwise protected Section 7 activity.
The decision effectively reinstated General Motors LLC, 369 NLRB No. 127 (2020), as controlling precedent after the U.S. Court of Appeals for the Fifth Circuit vacated the Board’s 2023 Lion Elastomers II ruling, which had applied a more employee-protective standard.
Under the restored framework, employers may discipline workers if they can demonstrate they would have taken the same action in the absence of the employee’s protected conduct.
The ruling represents the first notable rollback of Biden-era Board precedent since General Counsel Crystal Carey published GC Memorandum 26-04, which had specifically flagged Lion Elastomers II among the decisions she intended to challenge.
Carey has also moved on the question of union recognition procedures, filing a brief in a pending unfair labour practice case arguing that a 2023 precedent requiring employers to either promptly petition for an election or voluntarily recognise a union conflicts with U.S. Supreme Court rulings in Gissel Packing Co. and Linden Lumber.
She has asked the Board to restore the prior rule under which employers could decline voluntary recognition without filing an election petition, placing the obligation to seek a vote squarely on the union.
Meanwhile, a federal appellate court delivered a blow to the Board’s enforcement toolkit on September 18, when the U.S. Court of Appeals for the Seventh Circuit upheld the denial of a Section 10(j) injunction sought by a regional director in Hamada v. Laborforce, LLC, No. 25-3110.
The employer had withdrawn union recognition and unilaterally altered wages and benefits after workers filed decertification petitions, prompting the regional director to seek an emergency order restoring bargaining while unfair labour practice charges were resolved.
Applying the Supreme Court’s Starbucks v. McKinney standard, the Seventh Circuit rejected the Board’s argument that generalised harm to union support constitutes irreparable injury, finding that such outcomes are common to many labour disputes and therefore insufficient.
The court also weighed employees’ statutory right to refrain from union representation and noted that the regional director’s delay in pursuing relief further eroded the case for emergency intervention, a decision that deepens a developing split with the Second Circuit over what qualifies as irreparable harm under Section 10(j).