Governor Newsom has officially signed Senate Bill (SB) 399 into law, which enacts the California Worker Freedom from Employer Intimidation Act (Act) to take effect January 1, 2025. California employers have been monitoring its passage because of its potential impact on an employer’s ability to lawfully communicate its position and educate employees regarding a labor organization.

The new California law attempts to prohibit mandatory employer meetings regarding labor organizations known as captive audience meetings. Specifically, an employer is prohibited from subjecting or threatening to subject an employee to discharge, discrimination, or retaliation because the employee declines to attend an employer-sponsored meeting or refuses to listen to any communications with the employer or its agents where the purpose is to communicate the employer’s opinion about religious or political matters which includes labor organizations. An employer who violates this section shall be subject to a civil penalty of five hundred dollars ($500) per employee for each violation.

“Political matters” has been defined to include 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.

California joins other states, including Illinois, Connecticut, Hawaii, New York, and Oregon in enacting statutes that prohibit “captive audience” meetings, similarly limiting employers’ ability to conduct mandatory meetings on religious or political matters, including a labor organization.

Under this new California law, employers would be prohibited from mandating employees to attend employer information sessions regarding a labor organization even though the employer schedules the meeting during work time and pays employees to attend the meeting.

Certain types of employers are exempt from the new law, including religious corporations, political organizations or parties, educational institutions requiring a student or instructor to attend lectures on political or religious matters as part of the course work, and certain non-profits. The law also does not apply to an employer requiring employees to undergo training to comply with the employer’s legal obligations including civil rights and occupational safety and health laws.

Federal Preemption

Despite the states’ moving to ban captive audience meetings, an ongoing issue remains: the federal National Labor Relations Act (NLRA) preempts state law on such meetings.

The U.S. Chamber of Commerce continues to challenge these state laws through litigation and assert that they are preempted by Section 8(c) of the NLRA and violate the First and Fourteen Amendments.

General Counsel Initiatives 

National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo continues to advocate against captive audience meetings, including issuing a memorandum on April 7, 2022, (Memorandum GC 22-04) announcing she will argue that the Board should find employer captive audience meetings and related mandatory meetings violate the Act. Several groups have tried to challenge GC Abruzzo’s memorandum in Texas and Michigan district court, however, the district court in both matters found that it did not have jurisdiction to review prosecutorial decisions. Plaintiffs in both matters are appealing the decision and the matters are ongoing.

While the GC’s office cannot effectuate such a change in NLRB policy unilaterally, the GC can advance cases and arguments before the NLRB that advocate for a change in the law in this area, a change the employee-friendly Biden Board may support. This, of course, may be subject to change as 2024 is an election year and a change in administration would likely impact Board decisions.

Takeaways

Nonetheless, states imposing bans on mandatory captive audience meetings face an uphill battle due to federal preemption and decades of NLRB precedent. 

Effective January 1, 2025, employers subject to the California Worker Freedom from Employer Intimidation Act may need to consider whether it is in their organization’s best interest to make meeting attendance voluntary or proceed in accordance with the NLRA. While state law does not prohibit employees from voluntarily attending such meetings, there is a risk that abandoning mandatory attendance requirements could limit crucial employer-employee communication channels that are protected under federal law. 

Elizabeth L. Nguyen also contributed to this article.