California’s legislative landscape is set to shift dramatically with the recent passage of the California Worker Freedom from Employer Intimidation Act, Senate Bill 399. Set to take effect on January 1, 2025, this new law promises to reshape the dynamics of employer-employee communications, particularly in matters related to politics and labor unions.

Breaking Down the New California Law

The stated goal of SB 399 is to prevent workers from being required to attend mandatory job-related meetings about religious or political themes. SB 399 prohibits employers from subjecting employees to “discharge, discrimination, retaliation, or any other adverse action” for declining to attend such meetings or participate in such communications.

One of the most notable aspects of SB 399 is its broad definition of “political matters.” This term encompasses not only discussions about elections and political parties but also extends to legislation, regulation and “the decision to join or support any political party or political or labor organization.” This broad definition of “political matters” has raised concerns about this new law’s potential impact on workplace discussions, and the law certainly applies to mandatory meetings that discuss union organizing efforts.

Violations of SB 399 can result in significant penalties. SB 399 gives employees the right to bring civil actions against their employers, potentially leading to both compensatory and punitive damages.

While SB 399 casts a wide net, it’s important to note that the law does include several key exceptions. For instance, the law does not prohibit employers from communicating information that they are legally required to share with employees. It also allows for communications necessary for employees to perform their job duties. Additionally, SB 399 includes exemptions for religious organizations when it comes to communications about religious matters, and for political organizations regarding communications about their political tenets or purposes. Educational institutions are also exempt from the application of SB 399 when it comes to lectures on political or religious matters that are part of regular coursework. It also leaves room for employers to schedule these meetings in a way that does not penalize employees who decline to attend.

“Captive Audience” Bans Are a Growing Trend

The trend of restricting employers’ ability to mandate employee attendance at meetings discussing political or religious matters has gained momentum across several states. A growing number of states have enacted or are considering similar legislation banning mandatory group meetings. We previously discussed Illinois’ ban. Other states that have already enacted similar legislation include Connecticut, Hawaii, Maine, Minnesota, New York, Oregon, Vermont and Washington. The momentum behind this type of legislation continues to build. Several other states have introduced similar bills, including Alaska, Massachusetts, New Mexico and Rhode Island. Also, the National Labor Relations Board’s General Counsel – who determines most of the NLRB’s enforcement agenda – now takes the position that mandatory group meetings about unionization violate federal labor law.

Implications for California Employers

The implications of SB 399 for California employers are far-reaching. Perhaps most significantly, the law substantially limits employers’ ability to communicate with their workforce about union organizing efforts. Traditionally, employers have had the right, under narrowly prescribed circumstances, to share their perspective on unionization with employees through mandatory group meetings. Under SB 399, typically such meetings would be construed as “employer-sponsored meetings” about “political matters,” putting employers at risk of violating the new law if they require employees to attend or penalize them for declining to do so.

Beyond union-related communications, SB 399 may also impact broader workplace political discussions. Employers will need to carefully navigate conversations about legislation or regulations that affect their industry, as these too could fall under the law’s broad definition of “political matters.”

Potential Conflicts Between SB 399 and NLRA

The expansive scope of SB 399 may render some aspects of the law susceptible to legal challenges based on potential preemption by the federal National Labor Relations Act (NLRA). Under the NLRA, employers have certain rights, including the right share their perspective, in non-coercive speech, regarding union organizing, and to do so in mandatory meetings – referred to as “captive audience meetings” – with their employees. For employers, these rights are considered fundamental to the balance in labor-management relations. The U.S. Supreme Court has explicitly recognized that employers possess this right.

However, SB 399’s restrictions on employer-sponsored meetings about “political matters,” which explicitly includes labor organization issues, arguably contradict these NLRA-protected rights. This broad definition in SB 399 therefore portends a chilling effect on employer speech about unionization, potentially making employers hesitant to engage in NLRA-protected communication for fear of violating state law.

This then raises significant questions about federal preemption, as SB 399 could be seen as restricting employer rights protected under federal law. Opponents of SB 399 argue that because the NLRA already prohibits certain employer actions while protecting others, state laws like SB 399 are unnecessary and potentially in conflict with federal law, making them vulnerable to challenges on grounds of NLRA preemption.

Steps for Employer Compliance with SB 399

Employers should review their current policies related to workplace communications, particularly those concerning political and union-related topics. These policies may need to be updated to ensure compliance with SB 399.

It is also crucial that all supervisors and managers understand the new law and its implications. Employers should train supervisors and managers on what types of communications are allowed on political or religious topics, and how to ensure that attendance at any meetings discussing such matters (including union organizing) is truly voluntary.

It is important for employers to consult with legal counsel to ensure their policies and practices comply with SB 399.