Last Friday, Governor Newsom signed SB 399 – The California Worker Freedom from Employer Intimidation Act into law.
SB 399, which will take effect on January 1, 2025, prohibits private and public employers in California from subjecting, or threatening to subject, an employee “to discharge, discrimination, retaliation, or any other adverse action because the employee declines to attend an employer-sponsored meeting or affirmatively declines to participate in, receive, or listen to any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s opinion about religious or political matters.”
SB 399, which adds section 1137 to the California Labor Code, sets forth the following definitions for purposes of defining the scope of the protections:
- “Political matters” means matters relating to elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization.
- “Religious matters” means matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.
The Act provides that it may be enforced by private court action or by the California Labor Commissioner. In addition to regular damages and remedies, the statute specifies that the following relief may be granted in litigation, if a violation of the Act is found:
- Temporary and permanent injunctive relief
- Punitive damages
- A civil penalty of $500 per employee for each violation
Even though the law is broadly drafted, there is no question that the primary target of SB 399 was so-called captive audience meetings about union organizing. These are mandatory meetings that employers hold with employees, on work time, to discuss certain topics, usually related to providing employees with the employer’s views on unionization. So SB 399 prohibits California employers from forcing employees to go to meetings or listen to or review communications regarding the employer’s union views.
In April 2022, National Labor Relations Board General Counsel Jennifer Abruzzo published GC Memorandum 22-04 - The Right to Refrain from Captive Audience and Other Mandatory Meetings, offering her views on captive audience meetings. GC Memorandum 22-04 explains that according to Abruzzo, “years ago the Board incorrectly concluded that an employer does not violate the Act by compelling its employees to attend meetings in which it makes speeches urging them to reject union representation.” Abruzzo continued: “I believe that the NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language, and our Congressional mandate. Because of this, I plan to urge the Board to reconsider such precedent and find mandatory meetings of this sort unlawful.”
The NLRB is currently considering this issue in a case called Garten Trucking out of Region 10. However, in the meantime, many states have seized on GC Memorandum 22-04 and passed their own legislation banning or restricting captive audience meetings. In enacting SB 399, California joins a number of other states, including Hawaii, Connecticut, Illinois, Maine, Minnesota, New York, Washington and Vermont that have passed laws banning, restricting or regulating captive audience meetings that cover the topic of unionizations since the publication of GC Memorandum 22-04 in April 2022. Oregon was the only state to ban captive audience meetings prior to 2022, and its law remains in effect. A number of other states are looking at or considering similar legislation.
SB 399 will likely be subjected to court challenge as being (a) in violation of employers’ free speech rights under the United States Constitution, and (b) preempted by the National Labor Relations Act. In fact, the drafters of SB 399 obviously expected such a challenge, as they included language that provides: “The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.” It is also important to note that under the language of the new Loper Bright Enterprises Supreme Court decision, the federal courts may be more inclined to consider any such challenge. Nevertheless, at this point, the law will take effect three months from today.
To prepare for SB 399 becoming applicable in January, employers should consider engaging in the following steps over the next three months:
- Consult with knowledgeable legal counsel to understand the scope of the law and develop an appropriate strategy for managing the new restrictions and limitations;
- Develop and publish any applicable policies related to captive audience meetings;
- Train supervisors on the parameters of the law and the employer’s strategy and response and what the expectations and limitations will be related to mandatory employee meetings; and,
- Unless the employer intends to violate the law and challenge it in court, ensure that any employee meeting that is held where political or religious content is discussed is voluntary and the voluntary nature of the meeting is published clearly to employees, in writing, and saved.
If you are a California employer with questions about SB 399, captive audience meetings, or labor relations matters in general, you should consult an experienced California labor law attorney.
