Starting Jan. 1, almost all California public and private employers will be prohibited from disciplining, or threatening to discipline, employees who refuse to attend meetings to communicate “the employer’s opinion about religious or political matters.” Last month, Gov. Gavin Newsom signed into law Senate Bill 399, the California Worker Freedom from Employer Intimidation Act.
An employee who declines to attend such an employer-sponsored meeting will be entitled to be paid during the meeting.
The measure also prohibits employers from disciplining, or threatening to discipline, any employee who refuses to receive or listen to any communications with the employer or its agents expressing the employer’s religious or political opinions.
The law does not prohibit an employer from communicating to its employees any information the employer is legally required to communicate, “but only to the extent of that legal requirement.” The law also does not prohibit employers from communicating information necessary for employees to perform their jobs.
The new law does not apply to speech from a religious organization related to its employees who work on the organization’s religious mission. The law also exempts political organizations and parties that require their employees to attend employer-sponsored meetings to communicate the employers’ political mission.
An employer will face a civil penalty of $500 per employee for each violation.
‘Political matters’ include whether employees should join a union
The measure defines “political matters” to mean “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.”
Presumably, few employers force their employees to listen to their views about political candidates. Such a mandatory meeting may violate section 1102 of the California Labor Code, barring an employer from threatening to fire an employee for following or refusing to follow a particular political program.
Similarly, few employers would risk a claim of unlawful religious discrimination or harassment by subjecting their employees to employer-sponsored religious lecturing.
A core objective of the new law, then, was to outlaw “captive audience” meetings by employers designed to discourage employees from voting to unionize.
Court challenge likely
California Chamber of Commerce President and CEO Jennifer Barrera said in a statement “this measure is likely preempted by the National Labor Relations Act (NLRA) and a violation of the First Amendment.”
Under section 8(c) of the NLRA, it is not an unfair labor practice for an employer – or union – to express its views on labor organizing “if such expression contains no threat of reprisal or force or promise of benefit.” Citing federal court rulings, the chamber has argued that section 8(c) bars states from regulating noncoercive employer speech about labor organizing.
A Senate Judiciary Committee analyst acknowledged that whether the NLRA preempts SB 399’s prohibition on employer-mandated meetings related to labor organizing is “not settled” legally. SB 399 supporters point to a 2022 memorandum from the general counsel of the National Labor Relations Board that argued section 8(c) does not protect mandatory meetings related to employees’ organizing rights because such meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.”
Oregon enacted a similar law in 2009. Employer challenges to that law have been dismissed because the suits were not brought by employers that had disciplined employees for refusing to attend such a mandatory meeting.
A proper challenge to SB 399, and similar laws in Oregon and a few other states, may result in court rulings — ultimately by the U.S. Supreme Court — invalidating the bar on employer-mandated meetings related to labor organizing. The entire measure may be invalidated if a court concludes it probably would not have been enacted without the ban on mandatory meetings and communications about labor organizing.
Until and unless that happens, California employers will be unable to mandate employee attendance at employer-sponsored meetings or employee receipt of communications about the employers’ religious or political views.
Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com.
