Seventh Circuit raises eyebrows at challenge to Illinois labor law

The three-judge panel seemed skeptical of a lawsuit challenging a state ban on workplace "captive audience" meetings.CHICAGO (CN) — A Seventh Circuit panel appeared skeptical Friday that it was the appropriate venue to adjudicate an Illinois employment law — or for that matter, whether the plaintiffs even had a triable case at this time.In 2024, Illinois passed the Worker Freedom of Speech Act, which banned so-called “captive audience” meetings. These mandatory meetings, held during work hours, are often used for the purpose of discouraging labor organizing.A think tank and local trade association challenged the law on First Amendment grounds, seeking a preliminary injunction preventing the director of the Illinois Department of Labor from enforcing it. A lower court dismissed their lawsuit, determining that Department Director Jane Flanagan did not have enforcement authority under the law.Plaintiffs’ attorney Jeffrey Schwab again argued on Friday that the law grants Flanagan concrete enforcement authority — but the three-judge panel didn’t seem so sure.U.S. Circuit Judge Kenneth Ripple, a Ronald Reagan appointee, asked Schwab how the director is supposed to enforce the law.Schwab, an attorney with the Liberty Justice Center, said it was unclear. U.S. Circuit Judge Frank Easterbrook pushed back on Schwab’s arguments.“You say the statute doesn’t include a mechanism, but there are several state cases saying that when there is no express mechanism, then the suit is brought by the state attorney general,” noted Easterbrook, also a Reagan appointee. And yet “the attorney general doesn’t appear to be a party in this case.”Easterbrook pressed Schwab on how plaintiffs were actually effected by the statute.“The statute says … workers will have a claim if employers fire them for failing to attend certain meetings,” Schwab said.“Are you alleging that any of your workers have failed to attend these meetings?” Easterbrook asked. Schwab said no.“I’m trying to figure out how your clients are injured by this statute,” Easterbrook said. “This looks like preenforcement litigation.” He said the lawsuit seemed to based on so many what-if questions “that one wonders how we get to the Supreme Court’s requirement, which is that injury be certainly impending.”“Right?” Easterbrook continued. “I don’t see how anything is certainly impending.”“Well, your honor, there are two ways that an action can be brought against an employer,” Schwab said in response. “One is the one that you mentioned under Section 25 —”“Yeah, but that hasn’t happened,” Easterbrook interjected. “The question I asked was: Have any of your workers refused to attend a meeting? Because until that happens, this statute isn’t even — the process hasn’t even begun.”Sam Horan, an Illinois assistant attorney general, argued that Flanagan indeed lacked the enforcement authority Schwab ascribed to her. He described her authority as ministerial and said that it doesn’t go much beyond that.“Illinois case law is clear that [enforcement authority] needs to be specifically authorized by the statute,” he said. “Plaintiffs haven’t pointed to any sort of outside authority that the director would have, and the director mentioned in a sworn declaration in this case that she wasn’t aware of any.”“One more point I want to make about the scope of the statute is that, you know, my friend admitted it’s not clear how she would go about these things,” Horan continued. “If the legislature meant for her to somehow invent a scheme or introduce regulations to flesh out how this would work, one thing they would need to have given her is regulatory authority — and she doesn’t have a rule-making authority.”Ripple asked Horan if it would be more appropriate to say that this lawsuit simply isn’t ripe.“We don’t know what [the statute] means,” he said. “Nobody knows whether somebody can sue under it and how they can sue. It’s not right for federal adjudication. It just isn’t.”Easterbrook in turn said state court was the appropriate venue to clear up the ambiguity around a state law. U.S. Circuit Judge Joshua Kolar, a Joe Biden appointee, also appeared on Friday’s panel. The judges did not indicate when they might rule.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads