/>iOn August 15, 2024, the Appropriations Committee of the California State Assembly passed SB 399 by a vote of 10–3. The bill had passed the Senate in 2023 and has been with the Assembly since, waiting for action and a vote.
SB 399, the California Worker Freedom from Employer Intimidation Act, would prohibit employers from taking adverse actions against or threatening such actions against employees who refuse to attend or participate in meetings where an employer would communicate its opinion about religious or political matters, including meetings about unionization. The ban would be enforced by the Division of Labor Standards Enforcement, would allow an employee to seek injunctive relief for violations of the bill, and provides for a private right of action to recover damages caused by the alleged adverse action.
The bill is sponsored by the California Labor Federation, the California State Council of Teamsters, and is supported by numerous worker organizations. The bill is opposed by the California Chamber of Commerce and numerous employer and business organizations.
A ban on such meetings would limit an employer’s ability to run an effective counter to a union organizing campaign. Employers commonly utilize such meetings during union organizing drives to educate employees regarding the realities of unionization and the employer’s opinion on the topic. While the ban does not explicitly ban an employer from holding such voluntary meetings, they do arguably limit the rights provided to employers under 8(a) of the National Labor Relations Act, which allows employer free speech.
Given the subject matter covered by the bill, including unionization, there are potential legal challenges to this ban on grounds that it is unconstitutional under the First Amendment and is preempted by the National Labor Relations Act.
Other States Have Passed Similar Bans
At least seven other states including Connecticut, Maine, Minnesota, New York, Oregon, Washington, Hawaii and Illinois have enacted similar bans. These bans, like the proposed California bill, prohibit employers from taking adverse action against employees who refuse to attend or participate in employer meetings where employer communicates the opinion of the employer about political matters. The bans in Minnesota and Connecticut have been challenged in federal court as violating employer free speech and as being preempted under the National Labor Relations Act.
Such Bans Are Also Favored by Current General Counsel of the Board
As we reported on previously, General Counsel of the National Labor Relations Board, Jennifer Abruzzo urged the Board to rule that such captive audience meetings violate the National Labor Relations Act. Such a ruling would limit an employer’s free speech rights under 8(c) to the NLRA and reverse 75 years of Board precedent. The Board has not yet made such a ruling. Given the current Democratic Board and the number of recent decisions from the Board that favor unions and employees, the Board may agree with the General Counsel’s position and hold that mandatory meetings are unlawful.
Key Takeaways
Employers who become involved in union campaigning efforts must be cautious when attempting to organize meetings to educate employees regarding the union campaign. While the ban has not passed in California, employers may want to reconsider whether to hold mandatory “captive audience” meetings—and instead hold voluntary meetings—especially given the General Counsel’s view on the meetings, and to prevent any potential unfair labor practice charges with the NLRB.
