California passes law to protect workers from employer intimidation

On August 15, 2024, the California State Assembly Budget Committee passed SB 399 by a vote of 10 to 3. The bill passed the Senate in 2023 and has been before the Assembly since then, awaiting a resolution and vote.

SB 399, the California Worker Freedom from Employer Intimidation Act, would prohibit employers from taking or threatening to take action against employees who refuse to attend meetings at which an employer expresses its views on religious or political matters, including union-building meetings. The ban would be enforced by the Division of Labor Standards Enforcement, would allow an employee to seek an injunction for violations of the law, and provides a private right of action to seek damages for the alleged adverse action.

The bill is being introduced by the California Labor Federation and the California State Council of Teamsters and is supported by numerous labor organizations. The California Chamber of Commerce and numerous employers' and business associations oppose the bill.

A ban on such meetings would limit an employer's ability to effectively counter a union campaign. Employers often use such meetings as part of a union campaign to inform their employees about the realities of unionization and the employer's views on the issue. While the ban does not explicitly prohibit an employer from holding such voluntary meetings, it arguably limits the rights employers have under Section 8(a) of the National Labor Relations Act, which grants them free speech.

Given the issues addressed in the bill, which include unionization, this ban could be legally challenged as violating the First Amendment and being preempted by the National Labor Relations Act.

Other states have enacted similar bans

At least seven other states, including Connecticut, Maine, Minnesota, New York, Oregon, Washington, Hawaii and Illinois, have enacted similar bans. These bans, like the California bill, prohibit employers from taking adverse action against employees who refuse to attend employer meetings where the employer expresses its views on political matters. The Minnesota and Connecticut bans have been challenged in federal court on the grounds that they violate the employer's free speech rights and are overridden by the National Labor Relations Act.

Such bans are also supported by the current General Counsel of the Board

As we previously reported, Jennifer Abruzzo, general counsel of the National Labor Relations Board, urged the board to rule that such closed-door meetings violate the National Labor Relations Act. Such a ruling would restrict an employer's free speech rights under 8(c) of the NLRA and overturn 75 years of precedent set by the board. The board has not yet made such a ruling. Given the board's current Democratic makeup and the number of recent decisions by the board that favor unions and employees, the board could agree with the general counsel's position and rule that mandatory meetings are unlawful.

Key findings

Employers involved in union campaigns need to be cautious when attempting to organize meetings to inform employees about the union campaign. Although the ban has not yet passed in California, employers should reconsider holding mandatory “captive audience” meetings – and instead hold voluntary meetings – especially given the General Counsel's view of the meetings and to preempt potential unfair labor practice claims by the NLRB.