California Captive Audience Ban
At the end of September, Governor Newsom signed SB 399, the California Worker Freedom from Employer Intimidation Act (“Act”), which was discussed in this blog post. This new law, which will take effect on January 1, 2025, prohibits 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 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.”
In addition to restricting meetings with employees to express the employer’s opinion about political or religious issues, the Act also provides the following:
- Employees who decline participation and who are working at the time of the meeting must be paid while the meeting is held.
- Employers who violate the Act are subject to a civil penalty of $500 per employee for each violation.
- The California Labor Commissioner may enforce the Act including through the use of the citation process.
- Employees may bring private causes of action that include punitive damages.
Federal Captive Audience Ban
More recently, last week the National Labor Relations Board (NLRB) ruled in Amazon.com Services, LLC that an employer violates the National Labor Relations Act if it requires employees, “on pain of discipline or discharge, to attend a meeting during which it expresses its views concerning unionization.” In its decision, which overturned decades of federal precedent, the NLRB established a very limited “safe harbor” from liability for employers who want to meet with their employees regarding the employer’s view on unionization. Specifically, in order to avoid violating the NLRA, employers must reasonably in advance of the meeting inform employees of the following:
- The employer intends to express its views on unionization at a meeting at which attendance is voluntary;
- Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
- The employer will not keep records of which employees attend, fail to attend, or leave the meeting.
Employer Statements Regarding Impact of Unionization on Employer-Employee Relationship
Earlier this month, the NLRB also overturned a long-standing precedent established in its 1985 Tri-Cast decision. The Tri-Cast decision permitted employers to make statements about the potential negative impact that unionization would have on the relationship and communication between employers and employees.
With the NLRB’s recent decision on this issue, however, the Board will now be deciding, on a case-by-case basis, whether these statements constitute unlawful threats. Specifically, “to be deemed lawful, employer predictions about the negative impacts of unionization on employees’ ability to address issues individually with their employer ‘must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control.’”
Looking Forward
As discussed in the earlier SB 399 blog post, the California and federal captive audience laws arguably violate the First Amendment of the U.S. Constitution because they restrict the type of content that an employer can communicate with their employees and the ability to provide a forum to allow for expressing of opinions. The same argument can be made against the NLRB’s recent decision prohibiting employer statements on the effects of unionization.
Federal preemption also is at issue. Although both California and federal law currently seem to be in alignment with the NLRB’s recent ruling, if the Amazon decision is reversed by a new business-friendly Board under the Trump administration or overturned in federal court, federal law would preempt state law where state law interferes with the activity protected by federal law. In effect, a reversal of the Amazon decision would most likely void California’s captive audience ban.
In fact, there are several suits challenging other states’ captive audience bans on First Amendment and federal preemption grounds. It is likely that both California’s law and the NLRB’s decision will be challenged as well.
Until these issues are resolved, employers may want to consider holding voluntary meetings or consider other means of communicating their political opinions with their employees. In addition, employers will need to closely scrutinize their statements during union-organizing campaigns.
