At the end of its recent session, the California Legislature passed SB 399, the “California Worker Freedom from Employer Intimidation Act.” SB 399 prohibits employers from taking adverse employment actions against employees who decline to attend an employer-sponsored (“captive audience”) meeting, or participate in employer driven communications, where the purpose is to relate the employer’s opinion about religious or political matters.
The bill is now on the Governor’s desk. He has until the end of September to sign or veto it. If enacted, California would join a growing list of states attempting to ban “captive audience” meetings about religious and/or political matters. Other states with similar laws include Connecticut, Illinois, Maine, Minnesota, New York, Oregon, Vermont, and Washington.
SB 399’s Key Provisions
SB 399 would limit an employer’s ability to communicate with employees regarding political or religious matters during mandatory meetings that occur at work. The bill’s definition of “political matters” includes union organizing.
The California Senate Committee on Labor, Public Employment and Retirement defines “captive audience meetings” for the purposes of SB 399 as “mandatory meetings during work hours, organized by an employer where employees are paid for their time attending the meeting and are required to attend or face discipline.”
SB 399 would prohibit employers from “subject[ing], or threaten[ing] 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.” It also would require employers to pay employees at work who decline to attend the meeting.
It is clear from SB 399’s legislative history and text that the Legislature intended to prohibit employers from forcing employees to listen to employer communications during union organizing campaigns. The bill defines “political matters” to include “the decision to join or support any political party or political or labor organization.”
There are a few exceptions to SB 399’s reach. It excludes religious institutions or groups exempt from Title VII or California’s FEHA. It also would not apply to educational institutions requiring students or instructors to attend lectures addressing religious and/or political matters.
SB 399 authorizes the California Labor Commissioner to enforce the law. An employer that violates the law would be subject to a $500 penalty per employee per violation. Affected employees also could bring a civil action in lieu of administrative enforcement and potentially recover punitive damages.
If Governor Newsom signs SB 399 into law, employer groups likely will challenge it on the grounds that it unconstitutionally infringe on employers’ First Amendment right to express their perspectives about unionization efforts.
Related Prohibitions
Of course, the California Labor Code already protects employees from employer coercion regarding political issues. Labor Code Section 1101 prohibits employers from forbidding or preventing employees from engaging or participating in political activity or becoming candidates for public office, and from controlling or directing employees’ political activities or affiliations.
Similarly, Labor Code Section 1102 provides, “No employer shall coerce or influence or attempt to influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”
Federal law contains similar protections. The National Labor Relations Act (NLRA) guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” Moreover, the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce” employees in the exercise of the above-described rights.
