Starting Jan. 1, nearly all public and private employers in California will be able to discipline employees who refuse to attend meetings to convey “the employer’s opinions on religious or political issues.” or threaten discipline. Last month, Governor Gavin Newsom signed Senate Bill 399, the California Worker Freedom from Employer Intimidation Act.
An employee who refuses to attend such an employer-sponsored meeting is entitled to receive salary during the meeting.
The measure also prevents employers from disciplining or threatening to discipline employees who refuse to receive or listen to communications with the employer or its agents that express the employer’s religious or political opinions. is prohibited.
The law does not prohibit employers from communicating to employees any information that they are legally required to communicate, but only “to the extent of such legal requirements.” Additionally, the law does not prohibit employers from communicating information necessary for employees to perform their duties.
The new law does not apply to religious groups’ statements related to employees working on the group’s religious mission. The law also exempts political organizations and political parties that require employees to attend employer-sponsored meetings to communicate the employer’s political mission.
Employers are subject to a civil penalty of $500 per employee for each violation.
“Political matters” include whether employees should join a union;
The bill defines “political matters” to mean “matters relating to the election of political offices, political parties, legislation, regulations, and decisions to join or support political parties, political organizations, or labor organizations.”
Few employers would probably force their employees to listen to their opinions about political candidates. Such forced meetings could violate California Labor Code Section 1102, which prohibits employers from threatening to fire employees for following or not following a particular political program.
Similarly, few employers would risk claims of unlawful religious discrimination or harassment by having their employees attend employer-sponsored religious classes.
Thus, a central purpose of the new law was to outlaw “restricted audience” meetings in which employers aimed to prevent employees from voting to unionize.
Likely to be challenged in court
“This action is likely to be preempted by the National Labor Relations Act (NLRA) and violates the First Amendment,” California Chamber of Commerce President and CEO Jennifer Barrera said in a statement. ” he said.
Under Section 8(c) of the NLRA, an employer or union may not express opinions regarding labor organizing “if such expressions do not include threats of retribution or coercion, or promises of benefits. ”This is not an unfair labor practice. Citing federal court decisions, the Chamber argued that Section 8(c) prohibits states from regulating non-mandatory employer speech about worker organizing.
Analysts on the Senate Judiciary Committee acknowledged that whether the NLRA preempts SB 399’s ban on employer-sponsored gatherings related to labor organizing is “not yet settled” legally. SB 399 supporters pointed to a 2022 memo from the National Labor Relations Board’s general counsel that said such meetings “inherently involve unlawful threats that employees will be disciplined and therefore It argues that Section 8(c) does not protect mandatory meetings related to employees’ right to organize.” or you may be subject to other retaliation if you exercise your protected right not to hear such speech. ”
Oregon enacted a similar law in 2009. Because the case was not brought by an employer who disciplined an employee for refusing to attend a mandatory meeting, the employer’s challenge to the law was dismissed.
Proper challenges to SB 399 and similar laws in Oregon and several other states ultimately led to the U.S. Supreme Court striking down bans on employer-mandated gatherings related to worker organizing. There is a possibility that a court judgment will be issued. The entire bill could be invalidated if the court concludes that it probably would not have been enacted without the ban on forced meetings and communications related to worker organizing.
Until that happens, California employers cannot require employees to attend employer-sponsored meetings or to receive communications regarding the employer’s religious or political views.
Eaton is a partner in the San Diego law firm of Seltzer, Kaplan, McMahon, and Vitek, where his practice focuses on employer defense and advice. He is also an instructor at San Diego State University’s Fowler College of Business, where he teaches business ethics and employment law classes. He can be reached at eaton@scmv.com.
