Existing law, the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975, provides that it is the policy of the state to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives, self-organization, or other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Other existing law relating to employment prohibits employers from making, adopting, or enforcing rules, regulations, or policies that forbid or prevent employees from engaging or participating in politics or from becoming candidates for public office, and from controlling or directing, or tending to control or direct, the political activities or affiliations of employees.

This bill, except as specified, would prohibit an employer from subjecting, or threatening 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 employers opinion about religious or political matters and would require an employee who refuses to attend a meeting as described to continue to be paid, as specified. The bill would impose a civil penalty of $500 on an employer who violates these provisions.

The bill would authorize the Labor Commissioner to enforce the bills provisions. The bill would also authorize any employee who has suffered a violation of the bills provisions to bring a civil action, as specified, and to petition for injunctive relief.

Existing law, the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975, provides that it is the policy of the state to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives, self-organization, or other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Other existing law relating to employment prohibits employers from making, adopting, or enforcing rules, regulations, or policies that forbid or prevent employees from engaging or participating in politics or from becoming candidates for public office, and from controlling or directing, or tending to control or direct, the political activities or affiliations of employees.

This bill, except as specified, would prohibit an employer from subjecting, or threatening 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 employers opinion about religious or political matters and would require an employee who refuses to attend a meeting as described to continue to be paid, as specified. The bill would impose a civil penalty of $500 on an employer who violates these provisions.

The bill would authorize the Labor Commissioner to enforce the bills provisions. The bill would also authorize any employee who has suffered a violation of the bills provisions to bring a civil action, as specified, and to petition for injunctive relief.

Existing law, the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975, provides that it is the policy of the state to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives, self-organization, or other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Other existing law relating to employment prohibits employers from making, adopting, or enforcing rules, regulations, or policies that forbid or prevent employees from engaging or participating in politics or from becoming candidates for public office, and from controlling or directing, or tending to control or direct, the political activities or affiliations of employees.

This bill, except as specified, would prohibit an employer from subjecting, or threatening 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 employers opinion about religious or political matters. matters and would require an employee who refuses to attend a meeting as described to continue to be paid, as specified. The bill would impose a civil penalty of $500 on an employer who violates these provisions.

The bill would require the Division of Labor Standards Enforcement, upon the filing of a complaint by an employee, authorize the Labor Commissioner to enforce the bills provisions. The bill would also authorize any employee who the employer has subjected, or threatened to subject, to adverse action on account of the employees refusal to attend an employer-sponsored meeting has suffered a violation of the bills provisions to bring a civil action, as specified, and to petition for injunctive relief.

Existing law, the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975, provides that it is the policy of the state to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives, self-organization, or other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Other existing law relating to employment prohibits employers from making, adopting, or enforcing rules, regulations, or policies that forbid or prevent employees from engaging or participating in politics or from becoming candidates for public office, and from controlling or directing, or tending to control or direct, the political activities or affiliations of employees.

This bill, except as specified, would prohibit an employer from requiring its employees subjecting, or threatening 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 in, receive, or listen to any communications with the employer or its agents or representatives, the purpose of which is to communicate the employers opinion about religious matters, or political matters, or certain rights guaranteed by the United States Constitution and California Constitution, as defined. matters.

The bill would require the Division of Labor Standards Enforcement, upon the filing of a complaint by an employee, to enforce the bills provisions. The bill would also authorize any employee who the employer has subjected, or threatened to subject, to adverse action on account of the employees refusal to attend an employer-sponsored meeting to bring a civil action, as specified, and to petition for injunctive relief.

Existing law, the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975, provides that it is the policy of the state to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives, self-organization, or other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Other existing law relating to employment prohibits employers from making, adopting, or enforcing rules, regulations, or policies that forbid or prevent employees from engaging or participating in politics or from becoming candidates for public office, and from controlling or directing, or tending to control or direct, the political activities or affiliations of employees.

This bill, except as specified, would prohibit an employer from requiring its employees to attend an employer-sponsored meeting or participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employers opinion about religious matters, political matters, or certain rights guaranteed by the United States Constitution and California Constitution, as defined.

The bill would require the Division of Labor Standards Enforcement, upon the filing of a complaint by an employee, to enforce the bills provisions. The bill would also authorize any employee who the employer has subjected, or threatened to subject, to adverse action on account of the employees refusal to attend an employer-sponsored meeting to bring a civil action, as specified, and to petition for injunctive relief.

 UNFINISHED BUSINESS  

Bill No: SB 399

Author: Wahab (D), et al.

Amended: 8/19/24

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 4-1, 4/12/23

AYES: Cortese, Durazo, Laird, Smallwood-Cuevas

NOES: Wilk

SENATE JUDICIARY COMMITTEE: 9-2, 4/25/23

AYES: Umberg, Allen, Ashby, Caballero, Durazo, Laird, Min, Stern, Wiener

NOES: Wilk, Niello

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/18/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

SENATE FLOOR: 26-7, 5/25/23

AYES: Allen, Archuleta, Atkins, Becker, Blakespear, Bradford, Cortese, Durazo, Eggman, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NOES: Dahle, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

NO VOTE RECORDED: Alvarado-Gil, Ashby, Caballero, Dodd, Glazer, Grove, Roth

ASSEMBLY FLOOR: 42-16, 8/30/24 – Roll call not available

SUBJECT: Employer communications: intimidation

SOURCE: California Federation of Labor Unions

California Teamsters Public Affairs Council

DIGEST:

This bill enacts the California Worker Freedom from Employer Intimidation Act to prohibit an employer from subjecting, or threatening to subject, an employee to discharge, discrimination, retaliation 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.

Assembly Amendments

authorized, rather than required, the Labor Commissioner to enforce violations of these provisions. Added civil penalty amounts for violations of these provisions. Added additional employers to the list of entities exempt from these provisions.

ANALYSIS:

Existing federal law establishes the National Labor Relations Board (NLRB) as an independent federal agency vested with the power to safeguard employees’ rights to organize, engage with one another to seek better working conditions, choose whether or not to have a collective bargaining representative negotiate on their behalf with their employer, or refrain from doing so. The NLRB also acts to prevent and remedy unfair labor practices committed by private sector employers and unions, as well as conducts secret-ballot elections regarding union representation. (29 U.S.C. §153)

Existing state law:

1. Prohibits employers from adopting or enforcing any rule, regulation, or policy:
2. Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
3. Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

(Labor Code §1101)

1. Prohibits employers from coercing, influencing, or attempting to coerce or influence employees by means of threat of discharge or loss of employment to adopt or follow, or refrain from adoption or following, any particular course or line of political action or political activity. (Labor Code §1102)
2. Establishes within the Department of Industrial Relations (DIR) and under the direction of the Labor Commissioner, the Division of Labor Standards Enforcement (DLSE) tasked with administering and enforcing labor code provisions concerning wages, hours and working conditions. (Labor Code §56)
3. Provides the Labor Commissioner with authority to be assigned claims for loss of wages that arise from retaliation for lawful conduct occurring during nonworking hours and away from the employer’s premises. (Labor Code §96)

This bill:

1. Defines “employer” as any individual, partnership, association, corporation, or any agent, representative, designee, or person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent and shall include all branches of state government, or the several counties, cities and counties, and municipalities thereof, or any other political subdivision of the state, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.
2. Enacts the “California Worker Freedom from Employer Intimidation Act” to prohibit an employer, except as specified, from subjecting, or threatening 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, as defined.
3. Specifies that an employee who is working at the time of the meeting and elects not to attend a meeting shall continue to be paid while the meeting is held.
4. Authorizes the Labor Commissioner to enforce these provisions, including by investigating an alleged violation, and ordering appropriate temporary relief to mitigate a violation or maintain the status quo pending the completion of a full investigation or hearing including the issuing of citations for violations and filing a civil action.
5. Specifies that if a citation is issued, the procedures for issuing, contesting, and enforcing judgments for citations and civil penalties issued by the Labor Commissioner shall be the same as those set out in existing Labor Code Sections 98.74 or 1197.1, as applicable.
6. Specifies that, in addition to any other remedy, an employer who violates these provisions shall be subject to a civil penalty of five hundred dollars ($500) per employee for each violation.
7. Alternatively to Labor Commissioner enforcement, an employee who has suffered a violation may bring a civil action in a court of competent jurisdiction for damages caused by that adverse action, including punitive damages.
8. Specifies that in any such civil action, an employee or their exclusive representative may petition the superior court, as specified, for appropriate temporary or preliminary injunctive relief.
9. Provides that these provisions do not prohibit an employer from any of the following:
   1. Communicating to its employees any information that the employer is required by law to communicate, but only to the extent of that legal requirement.
   2. Communicating to its employees any information that is necessary for those employees to perform their job duties.
   3. For institutions of higher education, from meeting with or participating in any communications with its employees that are part of coursework, any symposia, or an academic program at that institution.
   4. For an employer that is a public entity, communicating to its employees any information related to a policy of the public entity or any law or regulation that the public entity is responsible for administering.
10. Exempts the following from these provisions:
    1. A religious corporation, entity, association, educational institution, or society that is exempt from the requirements of Title VII of the Civil Rights Act of 1964, as defined, or is exempt from employment discrimination protections of state law, as specified, with respect to speech on religious matters to employees who perform work connected with the activities undertaken by that religious corporation, entity, association, educational institution, or society.
    2. A political organization or party requiring its employees to attend an employer-sponsored meeting or to participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s political tenets or purposes.
    3. An educational institution requiring a student or instructor to attend lectures on political or religious matters that are part of the regular coursework.
    4. A nonprofit, tax-exempt training program requiring a student or instructor to attend classroom instruction, complete fieldwork, or perform community service hours on political or religious matters as it relates to the mission of the training program or sponsor.
    5. An employer requiring employees to undergo training to comply with the employer’s legal obligations, including obligations under civil rights laws and occupational safety and health laws.
    6. A public employer holding a new employee orientation, as defined in Section 3555.5 of the Government Code, or a provider holding an orientation as described in Section 12301.24 of the Welfare and Institutions Code.
11. Provides that these provisions are severable and if any provision or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

Background

Captive audience meetings are 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. Critics of these meetings argue that they are used to intimidate workers and spread the employers’ personal views on various issues. Employers argue the practice as being part of freedom of speech.

On April 07, 2022, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all field offices announcing that she would be asking the Board to find mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, including captive audience meetings, a violation of the National Labor Relations Act (NLRA). According to General Counsel Abruzzo, in workplaces across America, employers routinely hold mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, especially during organizing campaigns.

[NOTE: Please see the Senate Labor, Public Employment and Retirement Committee analysis on this bill for more background information.]

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee:

1. Costs of approximately $334,000 in the first year and approximately $323,000 annually thereafter to DLSE to provide enforcement upon receiving an employee complaint (Labor Enforcement Compliance Fund), potentially offset by a minor amount of penalty revenue.
2. Annual cost pressures (General Fund (GF) or Trial Court Trust Fund (TCTF)) of an unknown amount, potentially up to $150,000, to the courts in additional workload. As an alternative to administrative enforcement through DLSE, this bill authorizes an employee to bring a civil action through the courts. It is unclear how many actions may be filed statewide, but the estimated workload cost of one hour of court time is $1,000. Although courts are not funded on the basis of workload, increased pressure on staff and the TCTF may create a need for increased court funding from the GF to perform existing duties. The Budget Act of 2024 includes $37.3 million ongoing GF to backfill declining TCTF revenue.

SUPPORT: (Verified 8/22/24)

California Federation of Labor Unions (co-source)

California Teamsters Public Affairs Council (co-source)

Alameda Labor Council

American Federation of Labor and Congress of Industrial Unions, AFL-CIO

American Federation of State, County and Municipal Employees

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California Democratic Party

California Faculty Association

California Federation of Teachers, AFL-CIO

California IATSE Council

California Nurses Association

California Professional Firefighters

California Rural Legal Assistance Foundation, INC.

California School Employees Association

California State Legislative Board, Sheet Metal, Air, Rail and Transportation Workers – Transportation Division

California Teachers Association

California Teamsters Public Affairs Council

Center on Policy Initiatives

Central Coast Labor Council

Clergy and Laity United for Economic Justice

Contra Costa Central Labor Council

Engineers and Scientists of California, IFPTE Local 20, AFL-CIO

Hadassah

International Union of Elevator Constructors Local 8

Ironworkers Local 433

JCRC of Jewish Silicon Valley

Jewish Center for Justice

Jewish Community Relations Council of Sacramento

Jewish Democratic Club of Silicon Valley

Jewish Family & Children’s Service of Long Beach and Orange County

Jewish Family Services of San Diego

Jewish Family Services of Silicon Valley

Jewish Federation of the Greater San Gabriel and Pomona Valleys

Jewish Federation of the Sacramento Region

Jewish Long Beach

Jewish Public Affairs Committee of California

Jewish Silicon Valley

Jobs to Move America

JVS SoCal

North Bay Labor Council

Pillars of the Community

Progressive Zionists of California

Sacramento Central Labor Council, AFL-CIO

San Diego Black Workers Center

State Building and Construction Trades Council of California

TechEquity Collaborative

UAW Region 6

Unemployed Workers United

UNITE HERE, AFL-CIO

United Food and Commercial Workers, Western States Council

United Nurses Associations of California/Union of Health Care Professionals

Utility Workers Union of America

Voices for Progress

Warehouse Worker Resource Center

Worksafe

OPPOSITION: (Verified 8/22/24)

Acclamation Insurance Management Services

Agricultural Council of California

Air Conditioning Sheet Metal Association

Allied Managed Care

Associated Equipment Distributors

Associated General Contractors of California

Associated General Contractors San Diego Chapter

Association of California Healthcare Districts

Brea Chamber of Commerce

California Apartment Association

California Association for Health Services At Home

California Association of Recreation and Parks Districts

California Association of Sheet Metal & Air Conditioning Contractors National

California Association of Winegrape Growers

California Attractions and Parks Association

California Bankers Association

California Beer and Beverage Distributor

California Business Properties Association

California Business Roundtable

California Chamber of Commerce

California Credit Union League

California Employment Law Council

California Farm Bureau

California Grocers Association

California Hotel & Lodging Association

California Landscape Contractors Association

California League of Food Producers

California Lodging Industry Association

California Manufactures & Technology Association

California Restaurant Association

California Retailers Association

California Special Districts Association

California State Association of Counties

California State Council of the Society for Human Resource Management

California Trucking Association

Carlsbad Chamber of Commerce

Chino Valley Chamber of Commerce

Coalition of California Chambers – Orange County

Coalition of Small and Disabled Veteran Businesses

Construction Employers' Association

Corona Chamber of Commerce

Danville Area Chamber of Commerce

Family Business Association of California

Finishing Contractors Association of Southern California

First Amendment Coalition

Flasher Barricade Association

Folsom Chamber of Commerce

Fontana Chamber of Commerce

Fresno Chamber of Commerce

Gilroy Chamber of Commerce

Glendora Chamber of Commerce

Greater Coachella Valley Chamber of Commerce

Greater High Desert Chamber of Commerce

Greater San Fernando Valley Chamber of Commerce

Hollywood Chamber of Commerce

Housing Contractors of California

Independent Lodging Industry Association

International Warehouse Logistics Association

La Cañada Flintridge Chamber of Commerce

Laguna Niguel Chamber of Commerce

League of California Cities

Lodi District Chamber of Commerce

Murrieta/Wildomar Chamber of Commerce

National Electrical Contractors Association

National Federation of Independent Business

Northern California Allied Trades

Oceanside Chamber of Commerce

Official Police Garages Association of Los Angeles

Palos Verdes Peninsula Chamber of Commerce

Paso Robles Chamber of Commerce

Plumbing-Heating-Cooling Contractors Association of California

Roseville Area Chamber of Commerce

Rural County Representatives of California

San Juan Capistrano Chamber of Commerce

Santa Clarita Valley Chamber of Commerce

Santee Chamber of Commerce

Society of Human Resources Management

Simi Valley Chamber of Commerce

South County Chambers of Commerce

Southern California Contractors Association

Southern California Glass Management Association

Southwest California Legislative Council

Templeton Chamber of Commerce

Torrance Chamber of Commerce

Tri County Chamber Alliance

Tulare Chamber of Commerce

United Contractors

Urban Counties of California

Vacaville Chamber of Commerce

Vista Chamber of Commerce

Wall and Ceiling Alliance

Western Electrical Contractors Association

Western Growers Association

Western Line Constructors Chapter

Western Painting & Coating Contractors Association

Western Wall & Ceiling Contractors Association

Yorba Linda Chamber of Commerce

ARGUMENTS IN SUPPORT: According to the sponsors of this bill, “The effectiveness of captive audience meetings has led to employers using these forced meetings for political and religious purposes. The Royal Dutch Shell company invited then-candidate Trump to give a speech at their facility in 2019. The employers sent a memo to workers stating that attendance of the Trump rally was “not mandatory,” but that if they did not clock in to work that day they would lose pay and become ineligible to receive the 16 hours of overtime pay. Workers who attended were told “anything viewed as resistance” would not be tolerated at the event.”

ARGUMENTS IN OPPOSITION: According to a coalition of employer organizations, SB 399 violates the First Amendment arguing that it is a content-based restriction on speech. Among other things, they argue, “it is clear that the motive behind SB 399’s prohibition on employers discussing their opinions about unionization or pending bills is the assumption that employers will talk to their employees about the downsides of unionization and union-sponsored efforts, which the proponents of this bill disagree with. That is clear viewpoint-based discrimination, which also runs afoul of the First Amendment.” Additionally, they argue, “employees are already protected by law against coercion, discrimination, retaliation, and hostile environment harassment. Within those boundaries, employers have the same First Amendment right as any person, natural or corporate, to state their views.”Click here to enter text.

Prepared by: Alma Perez-Schwab / L., P.E. & R. / (916) 651-1556

8/30/24 17:27:05

**** END ****

SENATE THIRD READING

STR Bill Id:SB 399

Author:(Wahab)

As Amended Ver:August 19, 2024

Majority vote

SUMMARY

Prohibits an employer, as specified and with limited exceptions, from subjecting, or threatening 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, the purpose of which is to communicate the employer's opinion about religious or political matters.

Major Provisions

1. Defines "employer" to mean any individual, partnership, association, corporation, or any agent, representative, designee, or person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent. "Employer" includes all branches of state government, or the several counties, cities and counties, and municipalities thereof, or any other political subdivision of the state, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.
2. Defines "political matters" to mean 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.
3. Defines "religious matters" to mean matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.
4. Prohibits an employer, except an employer described in 9) and 10) below, from subjecting, or threatening 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.
   1. An employee declining participation who is working at the time of the meeting shall continue to be paid while the meeting is held.
5. Provides that, in addition to any other remedy, an employer who violates this section shall be subject to a civil penalty of five hundred dollars ($500) per employee for each violation.
6. Permits the Labor Commissioner (LC) to enforce this section, including investigating an alleged violation, and ordering appropriate temporary relief to mitigate a violation or maintain the status quo pending the completion of a full investigation or hearing through specified procedures, including the citation process.
7. Authorizes as an alternative to 5) above, any employee who suffered a violation of 4) above to bring a civil action in a court of competent jurisdiction for damages caused by that adverse action, including punitive damages.
8. Authorizes, in any civil action brought pursuant to 7) above, an employee or their exclusive representative to petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief.
9. States that the bill does not prohibit any of the following:
   1. An employer from communicating to its employees any information that the employer is required by law to communicate, but only to the extent of that legal requirement.
   2. An employer from communicating to its employees any information that is necessary for those employees to perform their job duties.
   3. An institution of higher education, or any agent, representative, or designee of that institution, from meeting with or participating in any communications with its employees that are part of coursework, any symposia, or an academic program at that institution.
   4. An employer that is a public entity from communicating to its employees any information related to a policy of the public entity or any law or regulation that the public agency is responsible for administering.
10. States that the bill does not apply to any of the following:
    1. A religious corporation, entity, association, educational institution, or society that is exempt from the requirements of Title VII of the Civil Rights Act of 1964 or is exempt from employment discrimination protections of state law, as specified, with respect to speech on religious matters to employees who perform work connected with the activities undertaken by that religious corporation, entity, association, educational institution, or society.
       • • 1. Excepted from this is a religious corporation or association with respect to persons employed by it to perform duties, other than religious duties, at a specified health care facility.
    2. A political organization or party requiring its employees to attend an employer-sponsored meeting or to participate in any communications with the employer, the purpose of which is to communicate the employer's political tenets or purposes.
    3. An educational institution requiring a student or instructor to attend lectures on political or religious matters that are part of the regular coursework at the institution.
    4. A nonprofit, tax-exempt training program requiring a student or instructor to attend classroom instruction, complete fieldwork, or perform community service hours on political or religious matters as it relates to the mission of the training program or sponsor.
    5. An employer requiring employees to undergo training to comply with the employer's legal obligations, including obligations under civil rights laws and occupational safety and health laws.
    6. A public employer holding a new employee orientation, as specified, or a provider

holding an orientation, as specified.

1. Provides that the provisions of the bill are severable.

COMMENTS

Employer political speech when delivered during a mandatory meeting can be particularly coercive. Employer speech comes from a source of authority, carrying "a different weight than that of any other participant in political debates [.]^[1]" The unequal power dynamic between an employer and its employees creates a setting ripe for intimidation. Some workers may feel compelled to adopt an employer's view on a political matter because "people need their jobs, and many will sacrifice their rights as citizens to continue to provide for themselves and their families. Consequently, an employer that tries to use its financial muscle to control employees' political behavior will often succeed.^[2]"

In the case of a workplace where employees are engaging in a unionization campaign, captive audience meetings can be particularly damaging. A review of employer tactics during union elections over a five year period found that in addition to utilizing a number of other anti-union tactics, 89% of employers used captive audience meetings while holding an average of 10 meetings during the campaign.^[3] Researchers conclude that this type of coercive employer behavior has led, under federal labor law, to less workers winning representation and fewer first time contracts.^[4]

According to the Author

"We live in highly polarized times where political discussions occur all too frequently in the workplace. No worker should be subject to forced indoctrination by their employer on politics, religion, or for exercising their protected rights on the job.

It is important that workers of all religions and political perspectives are free to go to work without feeling coerced or enduring a hostile work environment.

[This bill] prohibits employers from engaging in coercive conduct that requires workers to attend meetings on their views on political matters, religious matters, or constitutionally protected rights. This bill does not infringe on free speech rights and employers are still free to discuss their religious, political, and anti-union views with workers; so long as they do not coerce or force them to listen against their will."

The author further states that "[This bill] promotes workers' rights, especially those of marginalized communities, by protecting their right to advocate for themselves and opt out of conversations about politics or religion that have nothing to do with their ability to properly execute their job. By giving people the choice to listen to the political or religious views of their employer, we are ensuring that the most marginalized workers are not taken advantage of by their employers."

Arguments in Support

The California Labor Federation, a co-sponsor of the bill, states, "The bill clarifies that workers have the freedom to leave a mandatory meeting about their employers' views on religious or political matters, including support or opposition of political parties or unions.

In most workplaces, workers are "at-will" and can be fired at any time for almost any reason. That gives employers tremendous power to pressure workers to do as they say through mandatory meetings. These meetings are referred to as "captive audience meetings" because workers are not permitted to leave and are forced to listen to their employers' non-job-related views on politics or religion, or on reasons not to advocate for their own rights as workers.

The use of captive audience meetings is widespread and designed to intimidate and scare workers. An Economic Policy Institute study found that 63% of employers interrogate workers in one-on-one captive audience meetings and 54% of employers threaten workers in such meetings. These meetings are designed to deter workers from enforcing their rights on the job—whether it is reporting wage and hour violations, discrimination, sexual harassment, or forming a union to negotiate better wages and safer working conditions."

Arguments in Opposition

A coalition of employer organizations, including the California Chamber of Commerce, are opposed on a number of grounds, including federal preemption, and state, "Employers have the right to express their views and opinions regarding labor organizations. NLRA Section 8(c) following the enactment of that section, the NLRB stated that Congress had intended for both employers and unions to be free to influence employees as long as the speech is noncoercive. The United States Supreme Court also held that Section 8(c) of the NLRA has been interpreted as implementing the First Amendment for employers and as congressional intent to encourage free debate on issues between labor and management, rebuking the position that employer meetings on this topic should be banned as inherently coercive. Chamber of Commerce v. Brown, 554 U.S. 60 (2008); See also Healthcare Ass'n of New York State, Inc. v. Pataki, 471 F.3d 87, 98 (2d Cir. 2006). (Section 8(c) "not only protects constitutional speech rights, but also serves a labor law function of allowing employers to present an alternative view and information that a union would not present.") The Court also interpreted Section 8(c) as precluding the regulation of speech about organizing as long as the speech does not violate other provisions of the NLRA, such as containing threats or promising benefits for voting or not voting for the union. Brown, 554 U.S. at 68. It characterized the NLRA as a whole as favoring robust, uninhibited debate in labor disputes. Id.

Based on the above, it is evident that the NLRA protects the employer's right to require employee attendance in meetings or participation in communications regarding its opinion on union organizing. Further, Section 8(c) was intended to create the "free play of economic forces" by encouraging debate on the issue of unionization. SB 399's prohibition on employers' rights and interference with free debate over the issue of labor organizing means it is clearly preempted by the NLRA."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Costs of approximately $334,000 in the first year and approximately $323,000 annually thereafter to DLSE to provide enforcement upon receiving an employee complaint (Labor Enforcement Compliance Fund), potentially offset by a minor amount of penalty revenue.
2. Annual cost pressures (General Fund (GF) or Trial Court Trust Fund (TCTF)) of an unknown amount, potentially up to $150,000, to the courts in additional workload. As an alternative to administrative enforcement through DLSE, this bill authorizes an employee to bring a civil action through the courts. It is unclear how many actions may be filed statewide, but the estimated workload cost of one hour of court time is $1,000. Although courts are not funded on the basis of workload, increased pressure on staff and the TCTF may create a need for increased court funding from the GF to perform existing duties. The Budget Act of 2024 includes $37.3 million ongoing GF to backfill declining TCTF revenue.

VOTES

SENATE FLOOR: 26-7-7

YES: Allen, Archuleta, Atkins, Becker, Blakespear, Bradford, Cortese, Durazo, Eggman, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Dahle, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Alvarado-Gil, Ashby, Caballero, Dodd, Glazer, Grove, Roth

ASM LABOR AND EMPLOYMENT: 5-1-1

YES: Kalra, Haney, Ortega, Reyes, Ward

NO: Flora

ABS, ABST OR NV: Chen

ASM JUDICIARY: 7-3-1

YES: Maienschein, Connolly, Haney, Kalra, Papan, Reyes, McKinnor

NO: Essayli, Dixon, Sanchez

ABS, ABST OR NV: Pacheco

ASM APPROPRIATIONS: 10-3-2

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin

NO: Sanchez, Dixon, Ta

ABS, ABST OR NV: Jim Patterson, Villapudua

UPDATED

VERSION: August 19, 2024

CONSULTANT: Megan Lane / L. & E. / (916) 319-2091 FN: 0004020

1. Secunda, Paul M., "Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment," 120 Yale L.J. Online 17 (2010), p. 23. ↑

2. Ibid. at 20. ↑

3. Bronfenbrenner, Kate, EPI Briefing Paper, "No Holds Barred: The Intensification of Employer Opposition to Organizing," 2009, p. 10. ↑

4. Ibid. at 3. ↑

Date of Hearing: June 19, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 399

Author:(Wahab) – As Amended Ver:May 2, 2023

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill enacts the California Worker Freedom from Employer Intimidation Act.

Specifically, this bill:

1. Prohibits an employer from taking an adverse employment action against an employee because the employee declines to attend an employer-sponsored meeting or affirmatively declines to participate in, receive, or listen to communications regarding the employer’s opinion about religious or political matters.
2. Defines “political matters” to mean 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.
3. Exempts from this prohibition certain communications, such as an employer communicating information necessary for employees to perform their job duties, and certain situations, such as a political organization or party employer requiring its employees to attend a meeting to communicate its political tenets.
4. Requires the Division of Labor Standards Enforcement (DLSE) to enforce this prohibition upon the filing of an employee complaint.
5. Authorizes, as an alternative to DLSE enforcement, an employee subject to an adverse employment action for refusing to attend an employer-sponsored meeting to bring a civil action for damages and injunctive relief.

FISCAL EFFECT:

1. Costs of approximately $334,000 in the first year and approximately $323,000 annually thereafter to DLSE to provide enforcement upon receiving an employee complaint (Labor Enforcement Compliance Fund).
2. The Department of Justice, which represents state agencies in employment litigation, reports no fiscal impact from this bill. However, as further discussed in comment 3 below, state agencies may incur costs to the extent there is ambiguity regarding how this bill’s exemptions apply to a public employer.

Any similar costs incurred by local agencies are likely non-reimbursable by the state, as such provisions likely do not result in a higher level of service to the public and trigger creation of a state-mandated local program.

1. Annual cost pressures (General Fund (GF) or Trial Court Trust Fund (TCTF)) of an unknown amount, potentially up to $150,000, to the courts in additional workload. As an alternative to administrative enforcement through DLSE, this bill authorizes an employee to bring a civil action through the courts. It is unclear how many actions may be filed statewide, but the estimated workload cost of one hour of court time is $1,000. Although courts are not funded on the basis of workload, increased pressure on staff and the TCTF may create a need for increased court funding from the GF to perform existing duties. The Governor’s proposed 2024-25 state budget includes $83.1 million ongoing GF to backfill declining TCTF revenue.

According to the Legislative Analyst’s Office, the GF faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

COMMENTS:

1. Purpose. According to the author:

It is important that workers of all religious and political perspectives are free to go to work without feeling coerced or enduring a hostile work environment.

SB 399 prohibits employers from engaging in coercive conduct that requires workers to attend meetings on their views on political matters, religious matters, or constitutionally protected rights. This bill does not infringe on free speech rights and employers are still free to discuss their religious, political, and anti-union views with workers; so long as they do not coerce or force them to listen against their will.

1. Support and Opposition. This bill is co-sponsored by the California Labor Federation and California Teamsters Public Affairs Council, which argue “In most workplaces, workers are ‘at-will’ and can be fired at any time for almost any reason. That gives employers tremendous power to pressure workers to do as they say through the use of mandatory meetings.” This bill is supported by other labor organizations and economic justice groups.

This bill is opposed by a large coalition of business groups, led by the California Chamber of Commerce, which argues this bill’s “overbroad provisions effectively prohibit any discussion of political matters in the workplace and are unnecessary in light of existing California and federal laws that protect employees from any coercion related to their political beliefs or activities outside the workplace.” This bill is also opposed by a coalition of public employer associations, led by the League of California Cities, which argues this bill “would treat many routine government functions as political matters and interfere with government operations” or “potentially be argued to be political, leading to costly disputes.”

1. Background.

Need for Additional Employee Protections. An employer’s control over an employee’s workplace conditions and compensation establishes a power dynamic in the employer’s favor, which could expose the employee to significantly coercive behaviors by the employer. For example, an employer’s political speech delivered during a mandatory or “captive audience” meeting may intimidate an employee to concur, out of fear of losing one’s job. Reports indicate that such captive audience meetings are particularly damaging in a workplace where employees are engaging in a unionization campaign.

This bill prohibits an employer from subjecting, or threatening to subject, an employee to disciplinary action, including discharge, discrimination, or retaliation, because the employee declines to participate in an employer-sponsored meeting or affirmatively declines to participate in, receive, or listen to communications imparting the employer’s political or religious opinions. A law similar to this bill was passed in Oregon in 2009 and has withstood a number of legal challenges, although a recently enacted law in Connecticut is currently being challenged in federal court on First Amendment and federal preemption grounds.

Implementation by Public Employers. As described above, public employer associations cite concerns that this bill may inadvertently preclude a local government entity required to make and implement legislation and regulations (“political matters”) from necessary employee communications. This bill provides a number of employer exemptions, such as an employer communicating information necessary for employees to perform their job duties or a political organization or party employer requiring its employees to attend a meeting to communicate its political tenets.

However, it is unclear whether a local government qualifies as a political organization or the first exemption applies if an employee tasked with staffing a city council meeting has job duties largely irrelevant to the political matters being discussed at the meeting. Thus, as noted in the Assembly Judiciary Committee’s analysis of this bill, “While potentially unlikely, it is possible that the discussion of inherently political matters at that meeting may result in the employee feeling they were forced to listen to an employer’s political position.” Since such a scenario is also possible at a state government meeting, clarifying language may help guide implementation for public employers.

Analysis Prepared by: Irene Ho / APPR. / (916) 319-2081

Date of Hearing: August 16, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

SBPCA Bill Id:SB 399

Author:(Wahab) – As Amended Ver:May 2, 2023

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill enacts the California Worker Freedom from Employer Intimidation Act.

Specifically, this bill:

1. Prohibits an employer from taking an adverse employment action against an employee because the employee declines to attend an employer-sponsored meeting or affirmatively declines to participate in, receive, or listen to communications regarding the employer’s opinion about religious or political matters.
2. Defines “political matters” to mean 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.
3. Exempts from this prohibition certain communications, such as an employer communicating information necessary for employees to perform their job duties, and certain situations, such as a political organization or party employer requiring its employees to attend a meeting to communicate its political tenets.
4. Requires the Division of Labor Standards Enforcement (DLSE) to enforce this prohibition upon the filing of an employee complaint.
5. Authorizes an employee subject to such an adverse employment action for refusing to attend an employer-sponsored meeting to bring a civil action for damages and injunctive relief. However, the authorized civil action does not extend to an employee who affirmatively declines prohibited communications of the employer’s opinions.

FISCAL EFFECT:

1. Costs of approximately $334,000 in the first year and approximately $323,000 annually thereafter to DLSE to provide enforcement upon receiving an employee complaint (Labor Enforcement Compliance Fund).
2. The Department of Justice, which represents state agencies in employment litigation, reports no fiscal impact from this bill. However, as further discussed in comment 3 below, state agencies may incur costs to the extent there is ambiguity regarding how this bill’s exemptions apply to a public employer.

Any similar costs incurred by local agencies are likely non-reimbursable by the state, as such provisions likely do not result in a higher level of service to the public and trigger creation of a state-mandated local program.

1. Annual cost pressures (General Fund (GF) or Trial Court Trust Fund) of an unknown amount, potentially up to $150,000, to the courts in additional workload. In addition to administrative enforcement through DLSE, this bill authorizes an employee to bring a civil action through the courts. It is unclear how many actions may be filed statewide, but the estimated workload cost of one hour of court time is $1,000. Although courts are not funded on the basis of workload, increased pressure on staff and the TCTF may create a need for increased court funding from the GF to perform existing duties. The 2023-24 state budget agreement includes $105.1 million in ongoing GF revenue to continue backfilling the TCTF for expected revenue declines.

COMMENTS:

1. Purpose. According to the author:

It is important that workers of all religious and political perspectives are free to go to work without feeling coerced or enduring a hostile work environment.

SB 399 prohibits employers from engaging in coercive conduct that requires workers to attend meetings on their views on political matters, religious matters, or constitutionally protected rights. This bill does not infringe on free speech rights and employers are still free to discuss their religious, political, and anti-union views with workers; so long as they do not coerce or force them to listen against their will.

1. Support and Opposition. This bill is co-sponsored by the California Labor Federation and California Teamsters Public Affairs Council, which argue “In most workplaces, workers at ‘at-will’ and can be fired at any time for almost any reason. That gives employers tremendous power to pressure workers to do as they say through the use of mandatory meetings.” This bill is supported by other labor organizations and economic justice groups.

This bill is opposed by a large coalition of business groups, led by the California Chamber of Commerce, which argues this bill’s “overbroad provisions effectively prohibit any discussion of political matters in the workplace and are unnecessary in light of existing California and federal laws that protect employees from any coercion related to their political beliefs or activities outside the workplace.” This bill is also opposed by a coalition of public employer associations, led by the League of California Cities, which argues this bill “would treat many routine government functions as political matters and interfere with government operations” or “potentially be argued to be political, leading to costly disputes.”

1. Background.

Need for Additional Employee Protections. An employer’s control over an employee’s workplace conditions and compensation establishes a power dynamic in the employer’s favor, which could expose the employee to significantly coercive behaviors by the employer. For example, an employer’s political speech delivered during a mandatory or “captive audience” meeting may intimidate an employee to concur, out of fear of losing one’s job. Reports indicate that such captive audience meetings are particularly damaging in a workplace where employees are engaging in a unionization campaign.

This bill prohibits an employer from subjecting, or threatening to subject, an employee to disciplinary action, including discharge, discrimination, or retaliation, because the employee declines to participate in an employer-sponsored meeting or affirmatively declines to participate in, receive, or listen to communications imparting the employer’s political or religious opinions. A law similar to this bill was passed in Oregon in 2009 and has withstood a number of legal challenges, although a recently enacted law in Connecticut is currently being challenged in federal court on First Amendment and federal preemption grounds.

Implementation by Public Employers. As described above, public employer associations are concerned that as local government entities required to make and implement legislation and regulations (“political matters”), this bill may inadvertently preclude an employer from necessary employee communications. This bill provides a number of employer exemptions, such as an employer communicating information necessary for employees to perform their job duties or a political organization or party employer requiring its employees to attend a meeting to communicate its political tenets.

However, it is unclear whether a local government qualifies as a political organization or the first exemption applies if an employee tasked with staffing a city council meeting has job duties largely irrelevant to the political matters being discussed at the meeting. Thus, as noted in the Assembly Judiciary Committee’s analysis of this bill, “While potentially unlikely, it is possible that the discussion of inherently political matters at that meeting may result in the employee feeling they were forced to listen to an employer’s political position.” Since such a scenario is also possible at a state government meeting, clarifying language may help guide implementation for public employers.

Analysis Prepared by: Irene Ho / APPR. / (916) 319-2081

Date of Hearing: July 11, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

SBPCA Bill Id:SB 399

Author:(Wahab) – As Amended Ver:May 2, 2023

SENATE VOTE: 26-7

SUBJECT: EMPLOYER COMMUNICATION: INTIMIDATION

KEY ISSUE: SHOULD EMPLOYEES WHOSE EMPLOYER DISCIPLINES OR THREATENS TO DISCIPLINE THEM FOR DECLINING TO ATTEND AN EMPLOYER-SPONSORED MEETING, OR RECEIVING OR PARTICIPATING IN A COMMUNICATION WITH THE EMPLOYER INTENDED TO COMMUNICATE OPINIONS ON RELIGIOUS OR POLITICAL MATTERS BE AUTHORIZED TO FILE A COMPLAINT WITH THE DIVISION OF LABOR ENFORCEMENT STANDARDS OR BRING A CIVIL CLAIM AGAINST THEIR EMPLOYER?

SYNOPSIS

Due to their control over elements of the workplace such as an employee’s pay and benefits, employers enjoy outsized influence on their employees’ daily lives. This dynamic often exposes the employee to significantly coercive behaviors by the employer, including in the context of captive audience meetings. Captive audience meetings, which typically refer to a mandatory employer-hosted meeting during which the employer communicates their distaste for labor organizing or a specific union, are fairly common across industries.

This bill would prohibit an employer from disciplining or threatening to discipline an employee who declines to attend an employer-sponsored meeting or participate in or receive communications from the employer regarding political or religious matters. The bill is sponsored by the California Labor Federation and the California Teamsters Public Affairs Council. It is supported by a broad coalition of labor unions, community based organizations, and workers advocacy organizations. This bill is opposed by a large coalition of business advocates including the California Chamber of Commerce, as well as a number of construction industry employer advocates. The bill was previously heard by the Assembly Committee on Labor and Employment and passed out on a vote of 5-1.

SUMMARY: Prohibits employers from disciplining or threatening to discipline an employee who declines to attend an employer-sponsored meeting or affirmatively decline to participate in or receive communications with the employer regarding political or religious matters. Specifically, this bill:

1. Establishes the California Worker Freedom From Employer Intimidation Act.
2. Defines the following for purposes of this bill:
   1. “Employee” means any individual who performs services for and under the control and direction of an employer for wages or other remuneration.
   2. “Employer” means any individual, partnership, association, corporation, or any agent, representative, designee, or person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent and shall include all branches of state government, or the several counties, cities and counties, and municipalities thereof, or any other political subdivision of the state, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.
   3. “Political matters” means matters relating to elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political labor organization.
   4. “Religious matters” means matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.
3. Prohibits an employer, except as specified, from subjecting, or threatening 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 opinions about religious or political matters.
4. Authorizes enforcement by the Division of Labor Standards Enforcement (DLSE) upon the filing of a complaint by an employee.
5. Alternatively to 4) authorizes any employee who the employer has subjected, or threatened to subject, to discharge, discrimination, retaliation, or any other adverse action on account of the employee’s refusal to attend an employer-sponsored meeting to bring a civil action in a court of competent jurisdiction for damages caused by that adverse action, including punitive damages.
6. In a civil action brought pursuant to 5), authorizes an employee or their exclusive representative to petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transactions business, for appropriate temporary or preliminary injunctive relief.
7. Specifies that the bill does not prohibit any of the following:
   1. An employer from communicating to its employees any information that the employer is required by law to communicate, but only to the extent of that legal requirement;
   2. An employer from communicating to its employees any information that is necessary for those employees to perform their job duties;
   3. An institution of higher education, or any agent, representative, or designee of that institution, from meeting with or participating in any communications with its employees that are part of coursework, any symposia or an academic program at that institution.
8. Exempts all of the following from the provisions of the bill:
   1. A religious corporation, entity, association, educational institution, or society that is exempt from the requirements of Title VII of the Civil Rights Act of 1964 or is exempt from employment discrimination protections of state law, including, but not limited to specified sections of the Government Code and Labor Code, with respect to speech or religious matters to employees who perform work connected with the activities undertaken by that religious corporation, entity, association, educational institution, or society.
   2. A political organization or party requiring its employees to attend an employer-sponsored meeting or to participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s political tenets or purposes.
   3. An educational institution requiring a student or instructor to attend lectures on political or religious matters that are part of the regular coursework at the institution.
9. Includes a severability clause.

EXISTING LAW:

1. Provides a right to free speech and expression. (United States Constitution, First Amendment; California Constitution, Article 1, Section 2.)
2. Provides, through the National Labor Relations Act (NLRA), that it is the policy of the United States to encourage collective bargaining by protecting workers’ full freedom of association. The NLRA provides employees at private-sector workplaces the right to seek better working conditions and designation of representation without fear of retaliation. (29 U.S.C. Sections 151-169.)
3. Establishes the National Labor Relations Board (NLRB) as an independent federal agency vested with the power to safeguard employees’ rights to organize, engage with one another to seek better working conditions, choose whether or not to have a collective bargaining representative negotiate on their behalf with their employer, or refrain from doing so. The NLRB also acts to prevent and remedy unfair labor practices committed by private sector employers and unions, as well as conducts secret-ballot elections regarding union representation. (29 U.S.C. Section 153.)
4. Provides the Labor Commissioner with authority to take assignment of claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises. (Labor Code Section 96.)
5. Provides that no employer shall make, adopt, or enforce any rule, regulation, or policy:
   1. Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
   2. Controlling or directing, or tending to control or direct the political activities or affiliations of employees. (Labor Code Section 1101.)
6. Provides that no employer shall coerce or influence or attempt to coerce or influence their 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. (Labor Code Section 1102.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Due to their control over elements of the workplace such as an employee’s pay and benefits, employers enjoy outsized influence on their employees’ daily lives. This dynamic often exposes the employee to significantly coercive behaviors by the employer, including in the context of captive audience meetings. Captive audience meetings, which typically refer to a mandatory employer-hosted meeting during which the employer communicates their distaste for labor organizing or a specific union, are fairly common across industries. According to the author:

We live in highly polarized times where political discussions occur all too frequently in the workplace. No worker should be subject to forced indoctrination by their employer on politics, religion, or for exercising their protected rights on the job.

It is important that workers of all religions and political perspectives are free to go to work without feeling coerced or enduring a hostile work environment.

SB 399 prohibits employers from engaging in coercive conduct that requires workers to attend meetings on their views on political matters, religious matters, or constitutionally protected rights. This bill does not infringe on free speech rights and employers are still free to discuss their religious, political, and anti-union views with workers; so long as they do not coerce or force them to listen against their will.

This bill prohibits employers from subjecting or threatening to subject an employee to disciplinary action, including discharge, discrimination, or retaliation, because they decline to participate in an employer-sponsored meeting or affirmatively decline to participate in, receive, or listen to any communications with the employer or its agents that is intended to communicate the employer’s political or religious opinions.

Enforcement provisions. This bill establishes two potential enforcement mechanisms. First, the bill authorizes the Division of Labor Standards Enforcement to enforce the prohibitions of the new section upon receipt of a complaint by an employee. Alternatively, the bill authorizes an employee to file a civil claim against an employer to enforce the bill’s provisions. However, as currently written, the bill only authorizes this private right of action for employees who have been disciplined or threatened with discipline for refusing to attend an employer-sponsored meeting. The language does not authorize an employee to bring a civil claim against an employer that disciplines or threatens to discipline an employee from affirmatively declining to participate in, receive, or listen to any communications with the employer or its agents or representative regarding religious or political matters.

Based on position letters from both the proponents of the measure, as well as the opposition, it seems that stakeholders have interpreted this subdivision to authorize an employee to bring a claim against their employer for issuing discipline or threatening to do so for an employee’s refusal to participate in either an employer-sponsored meeting or employer-sponsored communication. Therefore, the author may wish to amend 1137 (e)(1) to clarify that an employee or their exclusive representative may bring a civil claim against their employer for any violation of the prohibited behaviors identified in subdivision (c).

The bill authorizes an employee who files a civil claim to seek punitive damages, as well as temporary or preliminary injunctive relief. Both forms of relief seem appropriately designed to allow the employee some monetary recovery for any potential harm caused by improper discipline, but also to dissuade the employer’s continued violations of the bill’s prohibitions.

Some opponents raise concerns that the bill does not sufficiently account for employers who occupy inherently political spaces. Specifically they write:

“While on its face this bill may appear as if it would not be a problem for local agencies, in reality, SB 399 is overly broad and could pose serious concerns for local jurisdictions. […] Government entities are required to make and implement policies for the benefit of their communities. This may come in the form of internal deliberations, analysis, and vetting of local rules, ordinances or other policies adopted by local or legislative bodies, or the consideration of state and federal legislation, local government positions on such legislation, and implementation of state and federal laws applicable to local government. If enacted, SB 399 would treat many routine government functions as political matters and interfere with government operations. SB 399 may apply to employees required to be present where legislation or regulations/ordinances are debated, such as a city council or board meetings, and even to such mundane tasks as seeking input or analysis from employees as to the implementation of proposed or enacted legislation. Because governments develop and implement policy, any activity could potentially be argued to be political, leading to costly disputes.”

The local government advocates conclude by voicing concern that the ambiguity in the language partnered with the private right of action will lead to costly litigation.

The intent of the bill does not seem to be to limit an employee from completing their job duties as assigned or as reasonably expected to arise, including in the context of positions that include a political element. In the context identified by the opponents here, it seems reasonable to conclude that an employee of a city council, for example, who may need to staff a city council meeting that includes topics of discussion that may touch on politics or religion but that are outside the immediate purview of their specific job duties is not the type of incident contemplated by this legislation. Rather, the aim seems to be to protect that same city council employee who may be directed to attend a meeting hosted by the Mayor where the Mayor communicates their distaste for the union attempting to organize the employee’s workplace. Moreover, it seems unlikely that a city council employee in this situation would opt to bring litigation against the city simply because they sat through a city council meeting which they were likely aware was a regular part of their job.

The situation described above is arguably exempted by two distinct subparagraphs. First, subparagraph (f)(2) specifies that the prohibition does not extend to an employer communicating to its employees any information that is necessary for those employees to perform their job duties. In the example provided, it seems the language contemplated by either section would cover a scenario in which an employee is required to attend a city council meeting or respond to an email requesting input on the implementation of enacted legislation as a necessary part of their job duties. Second, subparagraph (g)(2) provides that the bill does not apply to a political organization or party requiring its employees to attend an employer-sponsored meeting or to participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s political tenets or purposes. In the event (f)(2) is not sufficiently expansive, (g)(2) may also function to address the situations in which, for example, a city expresses their intent to support or oppose proposed legislation, assuming local governments and agencies are considered “political organizations or parties.” Nonetheless, there is arguably some ambiguity on this point. It is possible that an employee who is tasked with staffing a city council meeting may have job duties that are largely irrelevant to the matters being discussed in that given meeting. While potentially unlikely, it is possible that the discussion of inherently political matters at that meeting may result in the employee feeling they were forced to listen to an employer’s political position.

To the extent there is ambiguity on this point, the author may wish to amend the bill to prohibit an employer from disciplining or threatening to discipline an employee for declining to attend a meeting or participate in communication that deals with matters outside of the employee’s regular job duties. This approach avoids the risk of implying through omission that mandatory meetings or communications that are not related to politics or religion are otherwise acceptable. Alternatively, the author may wish to clarify that the exemptions in (f)(2) and (g)(2) extend to employees of various levels of government whose regular job duties involve political or religious speech. It does not seem advisable, however that an amendment of this sort entirely exempts public employers. Adding such language would not only ensure that employees of state and local government continue to enjoy the protections provided by this legislation.

First Amendment concerns. Opponents of this measure contend that the bill violates the protections guaranteed by the First Amendment. They believe that the bill constitutes a content-based restriction on speech and that it fails to provide the least restrictive means of accomplishing a compelling state interest. The opponents argue that the bill “effectively prohibits employers from providing a forum for discussion, debate and expressing their opinions regarding matters of public concern[.]” Finally, the opposition argues that, contrary to the proponents’ position, “there is no general First Amendment right not to listen to speech one doesn’t like.”

The First Amendment of the United States Constitution provides that, “Congress shall make no law abridging the freedom of speech, or of the press.” As applied to the states through the Fourteenth Amendment, and as interpreted by the courts, the First Amendment prohibits any law or policy, at any level of government, from abridging freedom of speech. Any statute that may create a restriction on speech, particularly in examples such as this that identifies political and religious speech, raises the potential of a First Amendment violation.

The threshold element of the First Amendment analysis is whether the legislation imposes a restriction on speech. The opponents argue that the bill “effectively prohibits discussions regarding political matters in the workplace” due to its prohibition on employers disciplining employees who decline to attend employer-sponsored meetings or participate in, receive, or listen to communications related the employers’ opinion about political matters. Notably, it is does not appear that the language of this bill imposes a restriction on employers’ speech. Under the bill, an employer would still be able to host meetings, send emails, post flyers, or otherwise utilize whichever forum they prefer to communicate their political or religious positions. The restriction contemplated by this measure is only as to the type of discipline an employer may mete out in response to an employee’s decision not to participate. An employer would not face any liability until and unless they opt to discipline an employee for declining to participate. While the First Amendment protects individuals’ right to speak, it does not include any obligation for others to listen. Ultimately it appears that, because the restriction proposed by this bill relates to the employer’s ability to discipline an employee rather than their right to speak, this measure does not violate the First Amendment.

The opposition’s subsequent argument, that there is no inherent right to be free from speech that one does not like is generally true. However, this principle relates to an individual’s First Amendment protections in that restrictions on speech may be inappropriate in part because one does not have the right to be entirely free from speech with which they disagree particularly if they are able to “avert their eyes”. (Cohen v. California (1971) 403 U.S. 15.) As previously discussed, it appears there is a strong argument that this bill does not violate the First Amendment as it does not create a restriction on speech and as such this principle would not apply to the current issue. 

Legislation similar to this bill has been enacted in Oregon and Connecticut, while the New York legislature is currently debating their own version of the measure. The Oregon statute, which was passed over a decade ago, has survived a number of legal challenges, although it does not appear that the rulings addressed First Amendment arguments or potential preemption concerns. In November of last year, the Chamber of Commerce challenged the Connecticut statute on First Amendment and federal preemption grounds and the case is currently pending in federal court. (Mark Pazniokas, CT’s ‘captive audience’ law challenge in federal court, CT Mirror (November 1, 2022) available at: https://ctmirror.org/2022/11/01/ct-captive-audience-law-lawsuit-chamber-tong-union-organizing/#:~:text=The%20Connecticut%20law%20bans%20employers,workers%20to%20sue%20for%20damages.)

NLRA preemption concerns. The opposition raises concerns that this measure is preempted by the National Labor Relations Act. Specifically they state:

“Employers have the right to express their views and opinions regarding labor organizations. NLRA Section 8(c) following the enactment of that section, the NLRB stated that Congress had intended for both employers and unions to be free to influence employees as long as the speech is noncoercive. The United States Supreme Court also held that Section 8(c) of the NLRA has been interpreted as implementing the First Amendment for employers and as congressional intent to encourage free debate on issues between labor and management, rebuking the position that employer meetings on this topic should be banned as inherently coercive. Chamber of Commerce v. Brown, 554 U.S. 60 (2008); See also Healthcare Ass’n of New York State, Inc. v. Pataki, 471 F.3d 87, 98 (2d Cir. 2006). (Section 8(c) “not only protects constitutional speech rights, but also serves a labor law function of allowing employers to present an alternative view and information that a union would not present.”) The Court also interpreted Section 8(c) as precluding the regulation of speech about organizing as long as the speech does not violate other provisions of the NLRA, such as containing threats or promising benefits for voting or not voting for the union. Brown, 554 U.S. at 68. It characterized the NLRA as a whole as favoring robust, uninhibited debate in labor disputes. Id.

Based on the above, it is evident that the NLRA protects the employer’s right to require employee attendance in meetings or participation in communications regarding its opinion on union organizing. Further, Section 8(c) was intended to create the “free play of economic forces” by encouraging debate on the issue of unionization. SB 399’s prohibition on employers’ rights and interference with free debate over the issue of labor organizing means it is clearly preempted by the NLRA.”

In April of last year, NLRB General Counsel Jennifer Abruzzo issued a memorandum announcing her intent to ask the Board to find “mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, including captive audience meetings, a violation of the [NLRA].” (NLRB General Counsel Jennifer Abruzzo Issues Memo on Captive Audience and Other Mandatory Meetings, National Labor Relations Board Office of Public Affairs (April 7, 2022) available at: https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-captive-audience-and.) A month later, an NLRB official sided with the Amazon Labor Union after the union filed an unfair labor practice complaint with the NLRB against the e-commerce titan for forcing workers at an Amazon warehouse on Staten Island to attend “captive audience trainings and said staff were threatened with dismissals if they joined the ALU.” (Jeffrey Dastin, Amazon’s captive staff meetings on unions illegal, labor board official finds, Reuters (May 6, 2022) available at: https://www.reuters.com/business/retail-consumer/amazons-captive-staff-meetings-unions-illegal-us-labor-director-finds-2022-05-06/.)

ARGUMENTS IN SUPPORT: This bill is co-sponsored by the California Labor Federation and the California Teamsters Public Affairs Council. It is supported by a broad coalition of labor unions, community based organizations, and workers advocacy organizations. In support of the bill, the co-sponsors write the following:

The use of captive audience meetings is widespread and designed to intimidate and scare workers. An Economic Policy Institute study found that 63% of employers interrogate workers in one-on-one captive audience meetings and 54% of employers threaten workers in such meetings. These meetings are designed to deter workers from enforcing their rights on the job—whether it is reporting wage and hour violations, discrimination, sexual harassment, or forming a union to negotiate better wages and safer working conditions.

The effectiveness of captive audience meetings has led to employers using these forced meetings for political and religious purposes. The Royal Dutch Shell company invited then-candidate Trump to give a speech at their facility in 2019. The employers sent a memo to workers stating that attendance of the Trump rally was “not mandatory,” but that if they did clock in to work that day they would lose pay and become ineligible to receive the 16 hours of overtime pay. Workers who attended were told that “anything viewed as resistance” would not be tolerated at the event.

These are the most egregious examples of political captive audience meetings, but employers are getting more sophisticated with the help of the Business-Industry Political Action Committee (BIPAC). BIPAC partners with major companies, including Exxon Mobil, Yum Brands, Wendy’s, Halliburton, and many others to advise them on how to “transform your employees into an army of pro-business voters” and “mobilize employees to drive success for your policy priorities.” BIPAC is developing and deploying the tools employers can and will use to force workers to listen to their political agenda and even to participate in it.

Other examples of coercion happen when workers advocate for their rights. In 2021, Amazon began holding mandatory anti-union meetings with workers at their JFK8 warehouse in New York. Workers at the facility were unionizing in part to address unsafe working conditions. Leaked audio of the meeting obtained by Motherboard illustrates the misrepresentations and coercive nature of the meetings. In California, Amazon workers in Moreno Valley endured multiple captive audience meetings where they were told they would lose their benefits if they unionized. Workers in Davis accused Peet’s Coffee of holding anti-union captive audience meetings, including flying in the president of the company, to unsuccessfully prevent workers from unionizing. Google, REI, Apple Stores, and many more employers have held captive audience meetings after workers began advocating for their rights on the job.

SB 399 prohibits employers from engaging in coercive conduct that requires workers to attend meetings on their views on political matters, religious matters, or constitutionally protected rights. This bill does not infringe on free speech rights and employers are still free to discuss their views with workers, so long as they do not coerce or force them to listen against their will. SB 399 is modeled on a 2022 bipartisan bill signed into law in Connecticut that regulates the same employer conduct. Similar laws exist in Oregon and Wisconsin.

California Rural Legal Assistance Foundation writes the following:

It is important to note that this bill does not end employer free speech, but would bring to an end to the practice of requiring employees to listen to that speech when it is about their views on political matters, religious matters, or constitutionally protected rights.

The bill further clarifies that workers have the freedom to leave a mandatory meeting about their employers’ views on religious or political matters, including their support or opposition to political parties or unions.

ARGUMENTS IN OPPOSITION: This bill is opposed by a large coalition of business advocates including the California Chamber of Commerce, as well as a number of construction industry employer advocates. The California Association of Sheet Metal and Air Conditioning Contractors, National Association submits the following:

Under this bill, a potentially aggrieved employee would be allowed to bring a civil action against their employer, agent or representative and seek punitive damages if they felt they were subjected to, or threatened to be subjected to, discharge, discrimination, retaliation, or any other adverse action because they declined to attend an employer-sponsored meeting or declined to participate in, receive, or listen to any communication with the employer or its agents or representatives that may be related to a “political matter.” For example, if an employer, including a labor organization, permits employees to attend a City Council meeting during the work day and buys the employees lunch, an employee who elects not to participate could bring a civil action if they were expected to show up to work and were not given a free lunch.

At a minimum, this bill denies our signatory contractors and our partner unions ability to:

• Speak with their employees about taking political actions that are intended to benefit the union construction industry, such as testifying before the Legislature in favor of labor standards;

• Speak with their employees about taking steps to encourage a local government to use union contractors;

• Conduct tours for federal, state or local elected officials at our shops or our Joint Apprenticeship Training Centers (JATCs);

• Publicly discuss and/or endorse candidates for elected office; and

• Discuss impacts of pending legislation or regulations on the industry or business with our employees.

This bill would effectively silence political speech and future workplace collaboration and promotion of the union construction industry in California between our contractors, employees and union representatives and agents.

The California Chamber of Commerce and its coalition submit the following:

SB 399 effectively prohibits discussions regarding political matters in the workplace. Specifically, it prevents employers from requiring employees to attend “an employer-sponsored meeting” or “participate in, receive, or listen to any communications with the employer” where the purpose is to communicate the employer’s opinion “about” political matters. It appears the intent of SB 399 is to effectively chill any communications by the employer or in the workplace about political matters. There is no clarity in the bill about what qualifies as an “employer-sponsored” meeting or participating in, receiving, or listening to any communications with the employer, which will cause employers to overcorrect and likely not speak on these matters at all. If an employee drives up to work every day and passes a political sign that the employer has out front, is this a communication? Can they request it to be taken down? If the employer does not do so or tries to assign the worker to a different facility so they do not pass the sign, would that be retaliation? What if the employer is hosting a political event and an employee refuses to work at the event? If the employer does not schedule them next time there is a similar event, can the employee try to claim an adverse action based on reduced hours? If an employer sends out communications saying they are supporting a legislative proposal and some employees request to opt out of those communications because they dislike the legislation, how would the employer ensure that employee never again saw any communication on that issue? Recent amendments also expanded the bill by removing the exception for managerial or supervisory employees.

Further, SB 399 will lead to significant consequences. Under SB 399, employers could not stop an employee from refusing to participate in meetings or communications regarding pending legislation or regulations. As we saw during the COVID-19 pandemic, it is often crucial that employers be able to communicate with their workers on pending new rules and what it would mean for the workplace. Similarly, if there is legislation pending that would have either a positive impact or detrimental impact on the business or workers’ job security, this is something workers would want to know about. This bill will chill that speech and is sure to make companies fearful of weighing in support of or opposition to legislation, candidates, ballot measures, and more.

SB 399 also puts employers in a difficult place regarding restricting individual employees’ speech. Under the NLRA, for example, the employer cannot stop an employee from discussing the merits of unionization or from talking to coworkers about how they support a candidate that wants to increase minimum wage. How can an employer simultaneously allow that speech while also ensuring that they are not violating SB 399?

The exceptions in the bill are also vague. A “political organization” is undefined, meaning its applicability will be tested through litigation. Similarly, allowing the employer to communicate to employees information “necessary for those employees to perform their job duties” is also sure to be tested through litigation regarding what is “necessary”.

Because SB 399 creates a new section of the Labor Code, any good faith error in interpreting the bill or its exceptions creates liability under the Private Attorneys General Act (PAGA), which carries significant penalties of $100 to $200 per employee per pay period. Because trial attorneys walk away as the winners under PAGA by taking at least one third of the total settlement or court award while workers often get mere pennies, SB 399 creates an enticing new cause of action for lawyers to manipulate for financial gain.

REGISTERED SUPPORT / OPPOSITION:

Support

California Labor Federation, AFL-CIO (co-sponsor)

California Teamsters Public Affairs Council (co-sponsor)

AFSCME
Alameda Labor Council
American Federation of Labor and Congress of Industrial Unions (AFL-CIO)
California Conference Board of The Amalgamated Transit Union
California Conference of Machinists
California Faculty Association
California Federation of Teachers AFL-CIO
California IATSE Council
California Nurses Association
California Professional Firefighters
California Rural Legal Assistance Foundation, INC.
California School Employees Association
California State Legislative Board, Sheet Metal, Air, Rail and Transportation Workers - Transportation Division (SMART-TD)
California Teachers Association
California Work & Family Coalition
Center on Policy Initiatives
Central Coast Labor Council
Clergy and Laity United for Economic Justice
Communications Workers of America, District 9
Community Clinic Association of Los Angeles County (CCALAC)
Contra Costa Central Labor Council
Elevator Constructors Local 8
Engineers and Scientists of California, IFPTE Local 20, AFL-CIO
Hadassah
Ironworkers Local 433
Jewish Center for Justice
Jewish Community Relations Council of Sacramento
Jewish Democratic Club of Silicon Valley
Jewish Family & Children's Service of Long Beach and Orange County
Jewish Family Service San Diego
Jewish Family Services of Silicon Valley
Jewish Federation of The Greater San Gabriel and Pomona Valleys
Jewish Federation of The Sacramento Region
Jewish Long Beach
Jewish Public Affairs Committee
Jewish Silicon Valley
Jobs to Move America
JYS SoCal
North Bay Labor Council
Pillars of The Community
Progressive Zionists of California
Sacramento Central Labor Council, AFL-CIO
San Diego Black Workers Center
State Building and Construction Trades Council of Ca
TechEquity Collaborative
UAW Region 6
Unemployed Workers United
Unite Here International Union, AFL-CIO
United Food and Commercial Workers, Western States Council
United Nurses Associations of California/union of Health Care Professionals
United Steelworkers District 12
Utility Workers Union of America
Warehouse Worker Resource Center
Worksafe

Opposition

Acclamation Insurance Management Services
Agricultural Council of California
Allied Managed Care
Associated General Contractors of California
Associated General Contractors-san Diego Chapter
Association of California Healthcare Districts
Association of California Healthcare Districts (ACHD)
Brea Chamber of Commerce
California Apartment Association
California Association for Health Services At Home
California Association of Recreation & Park Districts
California Association of Sheet Metal & Air Conditioning Contractors National Association
California Association of Winegrape Growers
California Attractions and Parks Association
California Bankers Association
California Business Properties Association
California Business Roundtable
California Chamber of Commerce
California Credit Union League
California Employment Law Council
California Farm Bureau
California Grocers Association
California Hotel & Lodging Association
California Landscape Contractors Association
California League of Food Producers
California Lodging Industry Association
California Manufactures & Technology Association
California Restaurant Association
California Retailers Association
California Special Districts Association
California State Association of Counties (CSAC)
California State Council of The Society for Human Resource Management (CALSHRM)
Carlsbad Chamber of Commerce
Chino Valley Chamber of Commerce
Coalition of California Chambers – Orange County
Coalition of Small and Disabled Veteran Businesses
Construction Employers' Association
Corona Chamber of Commerce
Danville Area Chamber of Commerce
Family Business Association of California
Flasher Barricade Association
Folsom Chamber of Commerce
Fontana Chamber of Commerce
Fresno Chamber of Commerce
Gilroy Chamber of Commerce
Glendora Chamber of Commerce
Greater Coachella Valley Chamber of Commerce
Greater High Desert Chamber of Commerce
Greater San Fernando Valley Chamber of Commerce
Hollywood Chamber of Commerce
Housing Contractors of California
Independent Lodging Industry Association.
LA Canada Flintridge Chamber of Commerce
League of California Cities
Murrieta Wildomar Chamber of Commerce
National Federation of Independent Business
Oceanside Chamber of Commerce
Official Police Garage Association of Los Angeles
Palos Verdes Peninsula Chamber of Commerce
Paso Robles Chamber of Commerce
Roseville Area Chamber of Commerce
Rural County Representatives of California (RCRC)
San Juan Capistrano Chamber of Commerce
Santa Clarita Valley Chamber of Commerce
Santee Chamber of Commerce
Simi Valley Chamber of Commerce
South County Chambers of Commerce
Southwest California Legislative Council
Templeton Chamber of Commerce
Torrance Area Chamber of Commerce
Tri County Chamber Alliance
Tulare Chamber of Commerce
Urban Counties of California (UCC)
Vacaville Chamber of Commerce
Vista Chamber of Commerce
Western Growers Association
Yorba Linda Chamber of Commerce

Analysis Prepared by: Manuela Boucher-de la Cadena / JUD. / (916) 319-2334

Date of Hearing: June 28, 2023

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Ash Kalra, Chair

SBPCA Bill Id:SB 399

Author:(Wahab) – As Amended Ver:May 2, 2023

SENATE VOTE: 26-7

SUBJECT: Employer communications: intimidation

SUMMARY: Prohibits an employer, as specified, from subjecting, or threatening 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, the purpose of which is to communicate the employer’s opinion about religious or political matters. Specifically, this bill:

1. Defines “employer” to mean any individual, partnership, association, corporation, or any agent, representative, designee, or person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent. “Employer” includes all branches of state government, or the several counties, cities and counties, and municipalities thereof, or any other political subdivision of the state, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.
2. Defines “political matters” to mean 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.
3. Defines “religious matters” to mean matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.
4. Prohibits an employer, except as provided in 8) and 9) below, from subjecting, or threatening to subject, an employee to discharge, discrimination, retaliation, or any other adverse action because of the following:
   1. The employee declines to attend an employer-sponsored meeting.
   2. The employee 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.
5. Requires, upon the filing of a complaint by an employee, the Division of Labor Standards Enforcement to enforce this section.
6. Authorizes as an alternative to 5) above, any employee who the employer has subjected, or threatened to subject, to discharge, discrimination, retaliation, or any other adverse action on account of the employee’s refusal to attend an employer-sponsored meeting to bring a civil action in a court of competent jurisdiction for damages caused by that adverse action, including punitive damages.
7. Authorizes, in any civil action brought pursuant to 6) above, an employee or their exclusive representative to petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief.
8. States that the bill does not prohibit any of the following:
   1. An employer from communicating to its employees any information that the employer is required by law to communicate, but only to the extent of that legal requirement.
   2. An employer from communicating to its employees any information that is necessary for those employees to perform their job duties.
   3. An institution of higher education, or any agent, representative, or designee of that institution, from meeting with or participating in any communications with its employees that are part of coursework, any symposia, or an academic program at that institution.
9. States that the bill does not apply to any of the following:
   1. A religious corporation, entity, association, educational institution, or society that is exempt from the requirements of Title VII of the Civil Rights Act of 1964 or is exempt from employment discrimination protections of state law, as specified, with respect to speech on religious matters to employees who perform work connected with the activities undertaken by that religious corporation, entity, association, educational institution, or society.

Excepted from this is a religious corporation or association with respect to persons employed by it to perform duties, other than religious duties, at a specified health care facility.

• 1. A political organization or party requiring its employees to attend an employer-sponsored meeting or to participate in any communications with the employer, the purpose of which is to communicate the employer’s political tenets or purposes.
  2. An educational institution requiring a student or instructor to attend lectures on political or religious matters that are part of the regular coursework at the institution.

1. Provides that the provisions of the bill are severable.

EXISTING LAW:

1. Provides that no employer shall make, adopt, or enforce any rule, regulation, or policy:
   1. Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
   2. Controlling or directing, or tending to control or direct the political activities or affiliations of employees. Labor Code § 1101.
2. Provides that no employer shall coerce or influence or attempt to coerce or influence their 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. Labor Code § 1102.

FISCAL EFFECT: According to the Senate Committee on Appropriations,

The Department of Industrial Relations (DIR) indicates that it would incur first-year enforcement costs of $334,000, and $323,000 annually thereafter, to implement the provisions of the bill (Labor Enforcement Compliance Fund).

Administrative costs to the Department of Justice (DOJ) have yet to be identified.

COMMENTS: Note: This measure is double referred to the Assembly Judiciary Committee upon passage out of this Committee.

Employer political speech when delivered during a mandatory meeting can be particularly coercive. Employer speech comes from a source of authority, carrying “a different weight than that of any other participant in political debates [.]^[1]” The unequal power dynamic between an employer and its employees creates a setting ripe for intimidation. Some workers may feel compelled to adopt an employer’s view on a political matter because “people need their jobs, and many will sacrifice their rights as citizens to continue to provide for themselves and their families. Consequently, an employer that tries to use its financial muscle to control employees’ political behavior will often succeed.^[2]”

In the case of a workplace where employees are engaging in a unionization campaign, captive audience meetings can be particularly damaging. A review of employer tactics during union elections over a five year period found that in addition to utilizing a number of other anti-union tactics, 89% of employers used captive audience meetings while holding an average of 10 meetings during the campaign.^[3] Researchers conclude that this type of coercive employer behavior has led, under federal labor law, to less workers winning representation and fewer first time contracts.^[4]

According to the author, “We live in highly polarized times where political discussions occur all too frequently in the workplace. No worker should be subject to forced indoctrination by their employer on politics, religion, or for exercising their protected rights on the job.

It is important that workers of all religions and political perspectives are free to go to work without feeling coerced or enduring a hostile work environment.

SB 399 prohibits employers from engaging in coercive conduct that requires workers to attend meetings on their views on political matters, religious matters, or constitutionally protected rights. This bill does not infringe on free speech rights and employers are still free to discuss their religious, political, and anti-union views with workers; so long as they do not coerce or force them to listen against their will.”

The author further states that “SB 399 promotes workers’ rights, especially those of marginalized communities, by protecting their right to advocate for themselves and opt out of conversations about politics or religion that have nothing to do with their ability to properly execute their job. By giving people the choice to listen to the political or religious views of their employer, we are ensuring that the most marginalized workers are not taken advantage of by their employers.”

The issue of NLRA preemption

Opponents of SB 399 argue, among other things, that the bill is preempted by the NLRA. The NLRA goes to the heart of federal labor law and governs the rights of private sector employees to organize, elect a representative of their own choosing, and collectively bargain. Contrary to opposition’s argument for preemption, federal labor law does not bar states from enacting legislation prohibiting employers from requiring their employees to listen to speech unrelated to job performance with the threat of termination or other disciplinary action.

As recognized by the United States Supreme Court, “The NLRA contains no express pre-emption provision.^[5]” Moreover, “consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.^[6]” Specifically, “the Court has recognized that it ‘cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions; obviously, much of this is left to the States.^[7]’”

The Court has consistently ruled that the states have the authority to establish and regulate minimum working conditions. Here, the bill would establish a baseline protection for workers to be free from the threat of adverse action for declining to attend meetings on political or religious matters. The Supreme Court has made clear that “[s]tates possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.^[8]” Such protective measures include “child labor laws, minimum and other wage laws, [and] laws affecting occupational health and safety…^[9]” “[T]here is no suggestion in the legislative history of the [National Labor Relations] Act that Congress intended to disturb the myriad state laws then in existence that set minimum labor standards.^[10]”

Similar legislation in other states

The state of Oregon was first to pass a similar measure to SB 399 in 2009. That law has withstood a number of legal challenges. More recently, Connecticut passed and Governor Ned Lamont signed a ban on captive audience meetings just last year.^[11] As of early June of this year, a similar measure had passed both houses of the New York State Legislature.^[12]

Arguments in Support

The California Labor Federation, a co-sponsor of the bill, states, “The bill clarifies that workers have the freedom to leave a mandatory meeting about their employers’ views on religious or political matters, including support or opposition of political parties or unions.

In most workplaces, workers are “at-will” and can be fired at any time for almost any reason. That gives employers tremendous power to pressure workers to do as they say through mandatory meetings. These meetings are referred to as “captive audience meetings” because workers are not permitted to leave and are forced to listen to their employers’ non-job-related views on politics or religion, or on reasons not to advocate for their own rights as workers.

The use of captive audience meetings is widespread and designed to intimidate and scare workers. An Economic Policy Institute study found that 63% of employers interrogate workers in one-on-one captive audience meetings and 54% of employers threaten workers in such meetings. These meetings are designed to deter workers from enforcing their rights on the job—whether it is reporting wage and hour violations, discrimination, sexual harassment, or forming a union to negotiate better wages and safer working conditions.”

Arguments in Opposition

A coalition of employer organizations, including the California Chamber of Commerce, are opposed on a number of grounds, including federal preemption, and state, “Employers have the right to express their views and opinions regarding labor organizations. NLRA Section 8(c) following the enactment of that section, the NLRB stated that Congress had intended for both employers and unions to be free to influence employees as long as the speech is noncoercive. The United States Supreme Court also held that Section 8(c) of the NLRA has been interpreted as implementing the First Amendment for employers and as congressional intent to encourage free debate on issues between labor and management, rebuking the position that employer meetings on this topic should be banned as inherently coercive. Chamber of Commerce v. Brown, 554 U.S. 60 (2008); See also Healthcare Ass’n of New York State, Inc. v. Pataki, 471 F.3d 87, 98 (2d Cir. 2006). (Section 8(c) “not only protects constitutional speech rights, but also serves a labor law function of allowing employers to present an alternative view and information that a union would not present.”) The Court also interpreted Section 8(c) as precluding the regulation of speech about organizing as long as the speech does not violate other provisions of the NLRA, such as containing threats or promising benefits for voting or not voting for the union. Brown, 554 U.S. at 68. It characterized the NLRA as a whole as favoring robust, uninhibited debate in labor disputes. Id.

Based on the above, it is evident that the NLRA protects the employer’s right to require employee attendance in meetings or participation in communications regarding its opinion on union organizing. Further, Section 8(c) was intended to create the “free play of economic forces” by encouraging debate on the issue of unionization. SB 399’s prohibition on employers’ rights and interference with free debate over the issue of labor organizing means it is clearly preempted by the NLRA.”

REGISTERED SUPPORT / OPPOSITION:

Support

California Labor Federation (Co-Sponsor)
California Teamsters Public Affairs Council (Co-Sponsor)
AFSCME
Alameda Labor Council
American Federation of Labor and Congress of Industrial Unions 
California Conference Board of The Amalgamated Transit Union
California Conference of Machinists
California Faculty Association
California Federation of Teachers
California IATSE Council
California Nurses Association
California Professional Firefighters
California Rural Legal Assistance Foundation
California School Employees Association
California State Legislative Board, Sheet Metal, Air, Rail and Transportation Workers - TD
California Teachers Association
California Work & Family Coalition
Center on Policy Initiatives
Central Coast Labor Council
Clergy and Laity United for Economic Justice
Contra Costa Central Labor Council
Elevator Constructors Local 8
Engineers and Scientists of California, IFPTE Local 20
Hadassah
Ironworkers Local 433
Jewish Center for Justice
Jewish Community Relations Council of Sacramento
Jewish Democratic Club of Silicon Valley
Jewish Family & Children's Service of Long Beach and Orange County
Jewish Family Service San Diego
Jewish Family Services of Silicon Valley
Jewish Federation of The Greater San Gabriel and Pomona Valleys
Jewish Federation of The Sacramento Region
Jewish Long Beach
Jewish Public Affairs Committee
Jewish Silicon Valley
Jobs to Move America
JVS SoCal
North Bay Labor Council
Pillars of The Community
Progressive Zionists of California
Sacramento Central Labor Council
San Diego Black Workers Center
State Building and Construction Trades Council of CA
Techequity Collaborative
UAW Region 6
Unemployed Workers United
Unite Here International Union
Unite-HERE
United Food and Commercial Workers, Western States Council
United Nurses Associations of California/union of Health Care Professionals
Utility Workers Union of America
Warehouse Worker Resource Center
Worksafe

Oppose

Acclamation Insurance Management Services
Agricultural Council of California
Allied Managed Care
Associated General Contractors of California
Associated General Contractors-San Diego Chapter
Association of California Healthcare Districts
Brea Chamber of Commerce
California Apartment Association
California Association for Health Services At Home
California Association of Recreation & Park Districts
California Association of Sheet Metal & Air Conditioning Contractors, National Association
California Association of Winegrape Growers
California Attractions and Parks Association
California Bankers Association
California Business Properties Association
California Business Roundtable
California Chamber of Commerce
California Credit Union League
California Employment Law Council
California Farm Bureau
California Grocers Association
California Hotel & Lodging Association
California Landscape Contractors Association
California League of Food Producers
California Lodging Industry Association
California Manufactures & Technology Association
California Restaurant Association
California Retailers Association
California Special Districts Association
California State Association of Counties
California State Council of The Society for Human Resource Management (CALSHRM)
Carlsbad Chamber of Commerce
Chino Valley Chamber of Commerce
Coalition of California Chambers – Orange County
Coalition of Small and Disabled Veteran Businesses
Construction Employers' Association
Corona Chamber of Commerce
Danville Area Chamber of Commerce
Family Business Association of California
Flasher Barricade Association
Folsom Chamber of Commerce
Fontana Chamber of Commerce
Fresno Chamber of Commerce
Gilroy Chamber of Commerce
Glendora Chamber of Commerce
Greater Coachella Valley Chamber of Commerce
Greater High Desert Chamber of Commerce
Greater San Fernando Valley Chamber of Commerce
Hollywood Chamber of Commerce
Housing Contractors of California
Independent Lodging Industry Association.
La Canada Flintridge Chamber of Commerce
League of California Cities
Murrieta Wildomar Chamber of Commerce
National Federation of Independent Business
Oceanside Chamber of Commerce
Official Police Garage Association of Los Angeles
Palos Verdes Peninsula Chamber of Commerce
Paso Robles Chamber of Commerce
Roseville Area Chamber of Commerce
Rural County Representatives of California (RCRC)
San Juan Capistrano Chamber of Commerce
Santa Clarita Valley Chamber of Commerce
Santee Chamber of Commerce
Simi Valley Chamber of Commerce
South County Chambers of Commerce
Southwest California Legislative Council
Templeton Chamber of Commerce
Torrance Chamber of Commerce
Tri County Chamber Alliance
Tulare Chamber of Commerce
Urban Counties of California (UCC)

California Legislative Conference of the Plumbing Heating and Piping Industry

National Electrical Contractors Association

Southern California Contractors Association

United Contractors
Vacaville Chamber of Commerce
Vista Chamber of Commerce
Western Growers Association
Yorba Linda Chamber of Commerce

Analysis Prepared by: Megan Lane / L. & E. / , Megan Lane / L. & E. /

1. Secunda, Paul M., “Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment,” 120 Yale L.J. Online 17 (2010), p. 23. ↑

2. Ibid. at 20. ↑

3. Bronfenbrenner, Kate, EPI Briefing Paper, “No Holds Barred: The Intensification of Employer Opposition to Organizing,” 2009, p. 10. ↑

4. Ibid. at 3. ↑

5. Building & Construction Trades Council v. Associated Builders and Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218, 224 (1993). ↑

6. Ibid. (quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). ↑

7. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 757 (1985) (quoting Motor Coach Employees v. Lockridge, 403 U.S. 274, 289 (1971)). ↑

8. Metropolitan Life Ins., 471 U.S. at 756 (quoting DeCanas v. Bica, 424 U.S. 351, 356 (1976)). ↑

9. Ibid. ↑

10. Ibid. ↑

11. Senate Bill 163 (Horn) of 2022. ↑

12. Senate Bill 4982 (Ramos) of 2023. ↑

 THIRD READING  

Bill No: SB 399

Author: Wahab (D), et al.

Amended: 5/2/23

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 4-1, 4/12/23

AYES: Cortese, Durazo, Laird, Smallwood-Cuevas

NOES: Wilk

SENATE JUDICIARY COMMITTEE: 9-2, 4/25/23

AYES: Umberg, Allen, Ashby, Caballero, Durazo, Laird, Min, Stern, Wiener

NOES: Wilk, Niello

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/18/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

SUBJECT: Employer communications: intimidation

SOURCE: California Labor Federation

California Teamsters Public Affairs Council

DIGEST:

This bill enacts the California Worker Freedom from Employer Intimidation Act to prohibit an employer from subjecting, or threatening 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.

ANALYSIS: Existing federal law establishes the National Labor Relations Board (NLRB) as an independent federal agency vested with the power to safeguard employees’ rights to organize, engage with one another to seek better working conditions, choose whether or not to have a collective bargaining representative negotiate on their behalf with their employer, or refrain from doing so. The NLRB also acts to prevent and remedy unfair labor practices committed by private sector employers and unions, as well as conducts secret-ballot elections regarding union representation. (29 U.S.C. §153)

Existing state law:

1. Prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy:
   1. Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
   2. Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

(Labor Code §1101)

1. Prohibits an employer from coercing, influencing, or attempting to coerce or influence employees through or by means of threat of discharge or loss of employment to adopt or follow, or refrain from adoption or following, any particular course or line of political action or political activity. (Labor Code §1102)
2. Establishes within the Department of Industrial Relations (DIR) and under the direction of the Labor Commissioner, the Division of Labor Standards Enforcement (DLSE) tasked with administering and enforcing labor code provisions concerning wages, hours and working conditions. (Labor Code §56)
3. Provides the Labor Commissioner with authority to be assigned claims for loss of wages that arise from retaliation for lawful conduct occurring during nonworking hours and away from the employer’s premises. (Labor Code §96)

This bill:

1. Enacts the “California Worker Freedom from Employer Intimidation Act” to prohibit an employer, except as specified, from subjecting, or threatening 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, as defined.
2. Defines “employer” as any individual, partnership, association, corporation, or any agent, representative, designee, or person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent and shall include all branches of state government, or the several counties, cities and counties, and municipalities thereof, or any other political subdivision of the state, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.
3. Requires the Division of Labor Standards Enforcement to enforce these protections upon the filing of a complaint by an employee.
4. Alternatively to filing a complaint with DLSE, an employee who the employer has subjected, or threatened to subject, to discharge, discrimination, retaliation, or any other adverse action on account of the employee’s refusal to attend an employer-sponsored meeting may bring a civil action in a court of competent jurisdiction for damages caused by that adverse action, including punitive damages.
   1. Specifies that in any such civil action, an employee or their exclusive representative may petition the superior court, as specified, for appropriate temporary or preliminary injunctive relief.
5. Provides that these provisions do not prohibit an employer from any of the following:
   1. Communicating to its employees any information that the employer is required by law to communicate, but only to the extent of that legal requirement.
   2. Communicating to its employees any information that is necessary for those employees to perform their job duties.
   3. For institutions of higher education, from meeting with or participating in any communications with its employees that are part of coursework, any symposia, or an academic program at that institution.
6. Exempts the following from these provisions:
   1. A religious corporation, entity, association, educational institution, or society that is exempt from the requirements of Title VII of the Civil Rights Act of 1964, as defined, or is exempt from employment discrimination protections of state law, as specified, with respect to speech on religious matters to employees who perform work connected with the activities undertaken by that religious corporation, entity, association, educational institution, or society.
   2. A political organization or party requiring its employees to attend an employer-sponsored meeting or to participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s political tenets or purposes.
   3. An educational institution requiring a student or instructor to attend lectures on political or religious matters that are part of the regular coursework.
7. Provides that these provisions are severable and if any provision or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

Background

Captive audience meetings are 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. Critics of these meetings argue that they are used to intimidate workers and spread the employers’ personal views on various issues. Employers argue the practice as being part of freedom of speech.

On April 07, 2022, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all field offices announcing that she would be asking the Board to find mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, including captive audience meetings, a violation of the National Labor Relations Act (NLRA). According to General Counsel Abruzzo, in workplaces across America, employers routinely hold mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, especially during organizing campaigns.

[NOTE: Please see the Senate Labor, Public Employment and Retirement Committee analysis on this bill for more background information on similar efforts in other states.]

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• The Department of Industrial Relations (DIR) indicates that it would incur first-year enforcement costs of $334,000, and $323,000 annually thereafter, to implement the provisions of the bill (Labor Enforcement Compliance Fund).
• Administrative costs to the Department of Justice (DOJ) have yet to be identified.

SUPPORT: (Verified 5/18/23)

California Labor Federation (co-source)

California Teamsters Public Affairs Council (co-source)

Alameda Labor Council

American Federation of Labor and Congress of Industrial Unions, AFL-CIO

American Federation of State, County and Municipal Employees

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California Faculty Association

California Federation of Teachers, AFL-CIO

California IATSE Council

California Nurses Association

California Professional Firefighters

California Rural Legal Assistance Foundation, INC.

California School Employees Association

California State Legislative Board, Sheet Metal, Air, Rail and Transportation Workers – Transportation Division

California Teachers Association

California Teamsters Public Affairs Council

Center on Policy Initiatives

Central Coast Labor Council

Clergy and Laity United for Economic Justice

Contra Costa Central Labor Council

Engineers and Scientists of California, IFPTE Local 20, AFL-CIO

Hadassah

International Union of Elevator Constructors Local 8

Ironworkers Local 433

JCRC of Jewish Silicon Valley

Jewish Center for Justice

Jewish Community Relations Council of Sacramento

Jewish Democratic Club of Silicon Valley

Jewish Family & Children’s Service of Long Beach and Orange County

Jewish Family Services of San Diego

Jewish Family Services of Silicon Valley

Jewish Federation of the Greater San Gabriel and Pomona Valleys

Jewish Federation of the Sacramento Region

Jewish Long Beach

Jewish Public Affairs Committee of California

Jewish Silicon Valley

Jobs to Move America

JVS SoCal

North Bay Labor Council

Pillars of the Community

Progressive Zionists of California

Sacramento Central Labor Council, AFL-CIO

San Diego Black Workers Center

State Building and Construction Trades Council of California

TechEquity Collaborative

UAW Region 6

Unemployed Workers United

UNITE HERE, AFL-CIO

United Food and Commercial Workers, Western States Council

United Nurses Associations of California/Union of Health Care Professionals

Utility Workers Union of America

Warehouse Worker Resource Center

Worksafe

OPPOSITION: (Verified 5/18/23)

Acclamation Insurance Management Services

Agricultural Council of California

Allied Managed Care

Associated General Contractors of California

Associated General Contractors San Diego Chapter

Association of California Healthcare Districts

Brea Chamber of Commerce

California Apartment Association

California Association for Health Services At Home

California Association of Sheet Metal & Air Conditioning Contractors National

California Association of Winegrape Growers

California Attractions and Parks Association

California Bankers Association

California Business Properties Association

California Business Roundtable

California Chamber of Commerce

California Credit Union League

California Employment Law Council

California Farm Bureau

California Grocers Association

California Hotel & Lodging Association

California Landscape Contractors Association

California League of Food Producers

California Lodging Industry Association

California Manufactures & Technology Association

California Restaurant Association

California Retailers Association

California State Council of the Society for Human Resource Management

Carlsbad Chamber of Commerce

Chino Valley Chamber of Commerce

Coalition of California Chambers – Orange County

Coalition of Small and Disabled Veteran Businesses

Construction Employers' Association

Corona Chamber of Commerce

Danville Area Chamber of Commerce

Family Business Association of California

Flasher Barricade Association

Folsom Chamber of Commerce

Fontana Chamber of Commerce

Fresno Chamber of Commerce

Gilroy Chamber of Commerce

Glendora Chamber of Commerce

Greater Coachella Valley Chamber of Commerce

Greater High Desert Chamber of Commerce

Greater San Fernando Valley Chamber of Commerce

Hollywood Chamber of Commerce

Housing Contractors of California

Independent Lodging Industry Association.

LA Canada Flintridge Chamber of Commerce

Murrieta Wildomar Chamber of Commerce

National Federation of Independent Business

Oceanside Chamber of Commerce

Official Police Garage Association of Los Angeles

Palos Verdes Peninsula Chamber of Commerce

Paso Robles Chamber of Commerce

Roseville Area Chamber of Commerce

San Juan Capistrano Chamber of Commerce

Santa Clarita Valley Chamber of Commerce

Santee Chamber of Commerce

Simi Valley Chamber of Commerce

South County Chambers of Commerce

Southwest California Legislative Council

Templeton Chamber of Commerce

Torrance Chamber of Commerce

Tri County Chamber Alliance

Tulare Chamber of Commerce

Vacaville Chamber of Commerce

Vista Chamber of Commerce

Western Growers Association

Yorba Linda Chamber of Commerce

ARGUMENTS IN SUPPORT: According to the sponsors of this bill, “The effectiveness of captive audience meetings has led to employers using these forced meetings for political and religious purposes. The Royal Dutch Shell company invited then-candidate Trump to give a speech at their facility in 2019. The employers sent a memo to workers stating that attendance of the Trump rally was “not mandatory,” but that if they did not clock in to work that day they would lose pay and become ineligible to receive the 16 hours of overtime pay. Workers who attended were told “anything viewed as resistance” would not be tolerated at the event.” Sponsors further argue that other examples of coercion happen when workers advocate for their rights and write, “In California, Amazon workers in Moreno Valley endured multiple captive audience meetings where they were told they would lose their benefits if they unionized.”

ARGUMENTS IN OPPOSITION: A coalition of employers are opposed arguing that it’s overbroad provisions effectively prohibit any discussion of political matters in the workplace and are unnecessary in light of existing California and federal laws that protect employees from any coercion related to their political beliefs or activities. Furthermore, they argue, “Because SB 399 creates a new section of the Labor Code, any good faith error in interpreting the bill or its exceptions creates liability under the Private Attorneys General Act (PAGA), which carries significant penalties of $100 to $200 per employee per pay period. Because trial attorneys walk away as the winners under PAGA by taking at least one third of the total settlement or court award while workers often get mere pennies, SB 399 creates an enticing new cause of action for lawyers to manipulate for financial gain.” Lastly, the coalition points out that, “similar laws have been enacted four times in other states. One was struck down, one was repealed because the state agreed that the provision was preempted by the NLRA, one lawsuit was dismissed solely based on a ripeness issue, and the fourth is presently in litigation.”

Prepared by: Alma Perez-Schwab / L., P.E. & R. / (916) 651-1556

5/20/23 12:44:47

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 399 (Wahab) - Employer communications: intimidation

Bill Summary:

SB 399 would enact the California Worker Freedom from Employer Intimidation Act, as specified.

Fiscal Impact:

• The Department of Industrial Relations (DIR) indicates that it would incur first-year enforcement costs of $334,000, and $323,000 annually thereafter, to implement the provisions of the bill (Labor Enforcement Compliance Fund).
• Administrative costs to the Department of Justice (DOJ) have yet to be identified.

Background:

Current law, Labor Code § 1101, prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy: forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office; or controlling or directing, or tending to control or direct the political activities or affiliations of employees.

Additionally, Labor Code § 1102 prohibits an employer from coercing, influencing, or attempting to coerce or influence their 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.

Under the direction of the Labor Commissioner, DIR’s Division of Labor Standards Enforcement (DLSE) is tasked with administering and enforcing Labor Code provisions concerning wages, hours and working conditions.

Proposed Law:

This bill, enacting the California Worker Freedom From Employer Intimidation Act, would among other things, do the following:

• Define “political matters” as 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.
• Define “religious matters” as matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.
• Define “employee” as any individual who performs services for and under the control and direction of an employer for wages or other remuneration.
• Define “employer” as any individual, partnership, association, corporation, or any agent, representative, designee or person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent and shall include all branches of state government, or the several counties, cities and counties, and municipalities thereof, or any other political subdivision of the state, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.
• Provide that an employer shall not subject, or threaten 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, as defined.
• Specify that DLSE shall enforce this Act upon the filing of a complaint by an employee.
• Specify that as an alternative to pursuing enforcement of the Act through the DLSE, an employee who the employer has subjected, or threatened to subject, to discharge, discrimination, retaliation, or any other adverse action on account of the employee’s refusal to attend an employer-sponsored meeting, may bring a civil action in a court of competent jurisdiction for damages caused by that adverse action, including punitive damages. Provide that in a civil action brought, an employee or their exclusive representative may petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief.
• Specify that the California Worker Freedom from Employer Intimidation Act does not apply to any of the following: (1) a political organization or party requiring its employees to attend an employer-sponsored meeting or to participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s political tenets or purposes, (2) an educational institution requiring a student or instructor to attend lectures on political or religious matters that are part of the regular coursework at the institution, and (3) a religious corporation, entity, association, educational institution, or society, as specified, with respect to speech on religious matters to employees who perform work connected with the activities undertaken by that religious corporation, entity, association, educational institution, or society.
• Specify that the bill does not prohibit any of the following: (1) an employer from communicating to its employees any information that the employer is required by law to communicate, but only to the extent of that legal requirement, (2) an employer from communicating to its employees any information that is necessary for those employees to perform their job duties, or (3) an institution of higher education, or any agent, representative, or designee of that institution, from meeting with or participating in any communications with its employees that are part of coursework, any symposia, or an academic program at that institution.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: SB 399 (Author:Wahab)

Version: February 9, 2023

Hearing Date: April 25, 2023

Fiscal: Yes

Urgency: No

Consultant: ME

SUBJECT

Employer communications: intimidation

DIGEST

This bill creates the California Worker Freedom from Employer Intimidation Act.^[1]

EXECUTIVE SUMMARY

Supporters of this bill explain that employees can easily feel compelled to sit through unwelcomed meetings about the religious or political opinions of their employers that are counter to the employee’s core beliefs simply because they are afraid of losing their job. This bill prohibits employers from subjecting an employee or threatening to subject an employee to an adverse employment action if 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.

Opponents contend that this bill limits an employer’s right to speak and provide a forum for discussion, debate, and expressing employer opinions regarding matters of public concern, in violation of the First Amendment. The bill does not, in fact, prohibit employers from providing such a forum; it merely prevents employers from punishing employees who decline to participate in such a forum. Opposition asserts that the bill violates the First Amendment of the United States Constitution and is preempted by the National Labor Relations Act (NLRA). Supporters disagree and note that a similar law has remained in effect for over a decade in Oregon notwithstanding assertions by employers that the law violates the First Amendment and is preempted by the NRLA.

The bill is sponsored by the California Labor Federation and the California State Council of Teamsters, and is supported by numerous worker organizations. The bill is opposed by the California Chamber of Commerce and numerous employer and business organizations. The bill passed the Labor, Public Employment and Retirement Committee on a 4 to 1 vote.

PROPOSED CHANGES TO THE LAW

Existing law^[2]:

1. Provides, through the National Labor Relations Act (NLRA), that it is the policy of the United States to encourage collective bargaining by protecting workers’ full freedom of association. The NLRA provides employees at private-sector workplaces the right to seek better working conditions and designation of representation without fear of retaliation. (29 U.S.C. §§ 151-169.)
2. Establishes the National Labor Relations Board (NLRB) as an independent federal agency vested with the power to safeguard employees’ rights to organize, engage with one another to seek better working conditions, choose whether or not to have a collective bargaining representative negotiate on their behalf with their employer, or refrain from doing so. The NLRB also acts to prevent and remedy unfair labor practices committed by private sector employers and unions, as well as conducts secret-ballot elections regarding union representation. (29 U.S.C. § 153.)
3. Provides that it is the policy of the state to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives, self-organization, or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. (Labor Code §§1140-1166.3.)
4. Provides the Labor Commissioner with authority to take assignment of claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises. (Labor Code § 96.)
5. Prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy: forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office; or controlling or directing, or tending to control or direct the political activities or affiliations of employees. (Labor Code § 1101.)
6. Prohibits an employer from coercing, influencing, or attempting to coerce or influence their 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. (Labor Code § 1102.)
7. Affirms the individual right to speak freely and prohibits the state and federal governments from restricting expression, with certain exceptions. (U.S. Const., 1st amend.; Cal. Const., art. I, § 1.)

This bill:

1. Enacts the California Worker Freedom from Employer Intimidation Act.
2. Defines “political matters” as 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.
3. Defines “religious matters” as matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.
4. Defines “employee” as any individual who performs services for and under the control and direction of an employer for wages or other remuneration.
5. Defines “employer” as any individual, partnership, association, corporation, or any agent, representative, designee or person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent and shall include all branches of state government, or the several counties, cities and counties, and municipalities thereof, or any other political subdivision of the state, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.
6. Provides that an employer shall not subject, or threaten 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.
7. Specifies that the Division of Labor Standards Enforcement (DLSE) shall enforce this Act upon the filing of a complaint by an employee.
8. Specifies that as an alternative to pursuing enforcement of the Act through the DLSE, an employee who the employer has subjected, or threatened to subject, to discharge, discrimination, retaliation, or any other adverse action on account of the employee’s refusal to attend an employer-sponsored meeting, may bring a civil action in a court of competent jurisdiction for damages caused by that adverse action, including punitive damages.
9. Provides that in a civil action brought pursuant to (8) above, an employee or their exclusive representative may petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief.
10. Specifies that the Act does not apply to any of the following: (a) a political organization or party requiring its employees to attend an employer-sponsored meeting or to participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s political tenets or purposes; (b) an educational institution requiring a student or instructor to attend lectures on political or religious matters that are part of the regular coursework at the institution; and (c) a religious corporation, entity, association, educational institution, or society, as specified, with respect to speech on religious matters to employees who perform work connected with the activities undertaken by that religious corporation, entity, association, educational institution, or society.
11. Specifies that the bill does not prohibit any of the following: (a) an employer from communicating to its employees any information that the employer is required by law to communicate, but only to the extent of that legal requirement; (b)an employer from communicating to its employees any information that is necessary for those employees to perform their job duties; or (c) an institution of higher education, or any agent, representative, or designee of that institution, from meeting with or participating in any communications with its employees that are part of coursework, any symposia, or an academic program at that institution.
12. Contains a severability clause.

COMMENTS

1. Stated need for the bill

According to the author:

We live in highly polarized times where political discussions occur all too frequently in the workplace. No worker should be subject to forced indoctrination by their employer on politics, religion, or for exercising their protected rights on the job.

It is important that workers of all religions and political perspectives are free to go to work without feeling coerced or enduring a hostile work environment.

SB 399 prohibits employers from engaging in coercive conduct that requires workers to attend meetings on their views on political matters, religious matters, or constitutionally protected rights. This bill does not infringe on free speech rights and employers are still free to discuss their religious, political, and anti-union views with workers; so long as they do not coerce or force them to listen against their will.

The California Labor Federation and California Teamsters Public Affairs Council, sponsors of this bill, write:

The bill clarifies that workers have the freedom to leave a mandatory meeting about their employers’ views on religious or political matters, including support or opposition of political parties or unions.

In most workplaces, workers are “at-will” and can be fired at any time for almost any reason. That gives employers tremendous power to pressure workers to do as they say through the use of mandatory meetings. These meetings are referred to as “captive audience meetings” because workers are not permitted to leave and are forced to listen to their employers’ non-job-related views on politics or religion, or on reasons not to advocate for their own rights as workers. [. . . ]

[W]orkers across the state are demanding safer workplaces, higher wages, and respect. In response, many employers use “captive audience meetings” to dissuade workers from joining a union or advocating for their rights through anti-union messages, misrepresentations, and threats. Employers can, and do, discipline workers who speak up in the meetings and fire workers who refuse to attend. [ . . . ]

[W]orkers need the freedom not to listen to their employers’ political and religious views against their will.

The California Teachers Association writes the following in support of the bill:

Captive audience meetings limit employee autonomy and autonomy over their own time, creating an environment of intimidation. These meetings are often used to present a biased or one-sided view of a particular issue, making it difficult for employees to challenge the opinion being presented. While the power dynamic inherent in employment relationships can be cooperative and productive, captive audience meetings create an atmosphere of distrust leading to a lack of collaboration between employees and employers. This bill stops an inappropriate form of manipulation where employers are trying to control the conversation and the outcome.

Captive audience meetings are a one-way conversation, with the boss or manager dictating the terms and not allowing for any meaningful dialogue or feedback. Workers leave these meetings feeling demoralized, because they feel they are not free to speak their minds and voice their opinions for fear of retaliation from their employer.

California Professional Firefighters, supporters of this bill, write:

Compulsory meetings required by an employer, often known as a “captive audience meeting” for the fact that employees must attend under threat of retaliation or termination, are an intimidation tactic used by employers to either push an ideology or discourage unionization efforts among their employees. By threatening to punish workers with reduced shifts, less favorable schedules, or even termination, employers are able to compel attendance often without pay.

Personal politics, beliefs, and anti-union sentiments do not belong in a place of employment, particularly when it is directed by those in a position of power against those who cannot afford to push back. All people should be able to go to work without fear of retaliation for resisting these efforts, and SB 399 will ensure that employees are free from employer harassment and intimidation.

2. First Amendment

This main provision of this bill specifies that an employer shall not subject, or threaten 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. The Division of Labor Standards Enforcement is provided with enforcement authority in this bill. An employee who is subjected to an adverse action by their employer may bring a civil action for damages caused by the adverse action, including punitive damages. The bill does not prohibit meetings where the employer’s opinion about religious or political matters are expressed. The employer would not be liable for damages under SB 399 until and unless the employer takes an adverse action against the employee for exercising their right to decline. The author agreed to remove the provision in the bill that allows a court to grant the prevailing employee their attorney’s fees and costs.

Sponsors of the bill assert that the bill does not violate the First Amendment. They explain that the “bill in no way prevents employers or anyone else from discussing religion, politics or any other subject. The only thing the bill prohibits is threatening to discharge or discipline or actually discharging or disciplining employees who do not wish to listen to such speech.”

The opponents of the bill argue that SB 399 violates employers’ First Amendment rights by prohibiting “employers from providing a forum for discussion, debate and expressing their opinions regarding matters of public concern.”^[3] The bill does not, in fact, prohibit employers from providing such a forum; it merely prevents employers from punishing employees who decline to participate in such a forum. The opponents do not cite to any case law suggesting that the First Amendment protects an employer’s right to speak at unwilling employees on topics unrelated to the job.

The sponsors of the bill argue that this bill is consistent with the principle that speech should not be forced on an unwilling listener.^[4] It is not clear whether this principle extends to workplaces. In fact, it appears that the question of the scope of the First Amendment at workplaces has not been meaningfully developed. As such, there is no current constitutional barrier to this bill, and Committee staff cannot predict how a reviewing court would balance an employer’s right to force speech on an employee vs. an employee’s right to walk away.

A similar law was enacted in Oregon in 2009.^[5] The Oregon law has been in effect for over a decade. The law has never been struck down. And, there is no case law on the issue of whether the Oregon bill violates the First Amendment or is federally preempted. Supporters of SB 399 also note that the “Oregon law was challenged twice in court but both suits were dismissed. Opponents explain that the Oregon law was challenged, but the “court never reached the merits of the case because it was dismissed on ripeness grounds.” In 2022, Connecticut enacted a similar law.^[6] The Chamber of Commerce of the United States of America is in the process of challenging the Connecticut law in the United States District Court, District of Connecticut.^[7]

3. The NLRA and Preemption

Should SB 399 become law, employers or employer groups will likely file litigation contending that the bill is preempted by the NLRA. The opponents of the bill assert that the bill is preempted by the NLRA. The issue is not settled.

A coalition of employer and business groups, including the California Chamber of Commerce, writes:

California and federal law already protect against employer coercion related to political matters. For example, the NLRA prohibits employers from making any threats to employees, interfering with or restraining exercise of their rights, coercing employees, or promising benefits to employees, interfering with or restraining exercise of their rights, coercing employees, or promising benefits to employees for voting a certain way in a union election. SEE, e.g., NLRA Sections 8(a)(1); 29 U.S.C. §§ 158(a)(1), (c).

As explained in Comment 1, above, supporters believe the types of communications and meetings employees should not be forced to participate in are coercive and in violation of the NLRA.

As explained by the National Labor Relations Board (NLRB):^[8]

Employees have the right to unionize, to join together to advance their interests as employees, and to refrain from such activity. It is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights. For example, employers may not respond to a union organizing drive by threatening, interrogating, or spying on pro-union employees, or by promising benefits if they forget about the union.

Section 7 of the National Labor Relations Act (the Act) 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.”

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.

The General Counsel of the NLRB issued Memorandum GC 22-04 in 2022 wherein they note that mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.” The General Counsel explained that “NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language, and our congressional mandate.” The General Counsel further explained that the NLRB must keep in mind the basic inequality of bargaining power between individual employees and their employers, as well as employees’ economic dependence on their employers. According to the General Counsel, “[f]orcing employees to listen to such employer speech under threat of discipline—directly leveraging the employees’ dependence on their jobs—plainly chills employees’ protected right to refrain from listening to this speech in violation of Section 8(a)(1). The fact that the threat arises in the context of employer speech does not immunize its unlawful coercive effect.” The General Counsel cites to 29 U.S.C. § 158(c) as standing for the proposition that Section 8(c) of the Act shields from unfair-labor-practice liability only expression of “views, argument, or opinion” that “contains no threat of reprisal or force.” The General Counsel cites to NLRB v. Gissel Packing Co., Inc. (1969) 395 U.S. 575, 617) for standing for the proposition that the provision “merely implements the First Amendment by preserving an employer’s free speech right to communicate its views to its employees.

The General Counsel also noted that in the past the NLRB incorrectly concluded that an employer does not violate the NLRA by compelling its employees to attend meetings in which it makes speeches urging them to reject union representation. The General Counsel highlighted that the employer uses express or implicit threats to force employees into these meetings and follows through on those threats through discharge or discipline if employees assert their right to refrain from listening, or refuse to attend, or leave the mandatory meeting. The General Counsel stated that they will urge the NLRB to “correct that anomaly” and find specified mandatory meetings are unlawful (1) when employees are forced to convene on paid time or (2) when employees are cornered by management while performing their job duties. As stated by the General Counsel, in “both cases, employees constitute a captive audience deprived of their statutory right to refrain, and instead are compelled to listen by threat of discipline, discharge, or other reprisal—a threat that employees will reasonably perceive even if it is not stated explicitly.”

Opponents of the bill contend that the NLRA protects the employer’s right to require employee attendance in meetings or participation in communications regarding the employer’s opinion on union organizing. The opposition coalition, which includes the California Chamber of Commerce, writes:

The NLRA comprehensively regulates labor matters in the United States [ . . . ]. State law is preempted by the NLRA where it interferes with the NLRB’s interpretation and enforcement of the NLRA, regulates activity that the NLRA protects, prohibits, or arguably protects or prohibits, or regulates conduct that Congress intended to be left to the “free play of economic forces[.”]

Employers have the right to express their views and opinions regarding labor organizations. NLRA Section 8(c). Following the enactment of that section, the NLRB stated that Congress had intended for both employers and unions to be free to influence employees as long as the speech is noncoercive. The United States Supreme Court also held that Section 8(c) of the NLRA has been interpreted as implementing the First Amendment for employers and as congressional intent to encourage free debate on issues between labor and management. [ . . . ] The Court also interpreted Section 8(c) as precluding the regulation of speech about organizing as long as the speech does not violate other provisions of the NLRA, such as containing threats or promising benefits for voting or not voting for the union. [ . . . ] It characterized the NLRA as a whole as favoring robust, uninhibited debate in labor disputes.

The California Labor Federation contends that federal labor law does not bar states from enacting legislation prohibiting employers from requiring their employees to listen to speech unrelated to job performance on pain of termination or other disciplinary action. They write:

As the United States Supreme Court has recognized, “The NLRA contains no express pre-emption provision.” Building & Construction Trades Council v. Associated Builders and Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218, 224 (1993). Moreover, “‘Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.’” Id. [ . . . ] Finally, “the Court has recognized that it ‘cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions; obviously, much of this is left to the States.” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 757 (1985) [ . . . ].

The proposed bill falls into several well-recognized exceptions to federal labor law preemption. [ . . . ] The Supreme Court has made clear that “[s]tates possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” [ . . . ] [T]here is no suggestion in the legislative history of the [National Labor Relations] Act that Congress intended to disturb the myriad state laws then in existence that set minimum labor standards.” [ . . . ] “Federal law in this sense is interstitial, supplementing state law where compatible, and supplanting it only when it prevents the accomplishment of the purposes of the federal Act.” [ . . . ] In other words, the Court has long recognized that states can establish minimum working conditions without interfering with federal labor law. [. . . ] A state can pass a law preventing an employer from forcing employees to work under conditions that threaten their physical safety (“laws affecting occupational health and safety”). Similarly, a state can pass a law preventing an employer from forcing employees to attend a meeting that threatens their psychological safety – i.e., their freedom of conscience. It is clear, to cite another example, that a state can pass a law barring discharge of employees without just cause. [ . . . ] It is also clear that a state can pass a law barring discharge of employees for a limited set of improper reasons, for example, on the basis of race. The proposed legislation falls into the latter category. It bars employers from disciplining or discharging employees for an improper reason -- refusing to listen to speech unrelated to their job performance. The bill is thus permissible minimum conditions legislation and is not preempted by federal labor law. [ . . . ]

States are permitted to adopt regulations, even when they affect labor relations, when they address matters “deeply rooted in local feeling and responsibility.” Farmer v. Carpenters Local 24, 430 U.S. 290, 298 (1977). This is because in these areas there is “an overriding state interest” in the regulations. Id. The state regulations that have been upheld on this ground typically protect personal dignity and private property. [ . . . ]

The State has a similar deeply rooted interest in protecting personal dignity and freedom of thought by barring employers from forcing employees to listen to speech concerning core matters of individual conscience unrelated to their job performance. [ . . . ]^[9]

SUPPORT

California Labor Federation (sponsor)
California Teamsters Public Affairs Council (sponsor)
Alameda Labor Council

American Federation of State, County, and Municipal Employees

America Federation of Labor and Congress of Industrial Unions, AFL-CIO

California Conference of the Amalgamated Transit Union

California Conference of Machinists

California Faculty Association

California IATSE Council
California Nurses Association/National Nurses United

California Professional Firefighters
California Rural Legal Assistance Foundation

California School Employees Association

California State Legislative Board of Sheet Metal, Air, Rail and Transportation Workers- Transportation Division

California Federation of Teachers, AFL-CIO

California Teachers Association

Center on Policy Initiatives

Central Coast Labor Council

Clergy and Laity United for Economic Justice

Contra Costa Central Labor Council

Elevator Constructors Local 8

Engineers and Scientists of CA, IFPTE Local 20, AFL-CIO

Hadassah

International Union of Elevator Constructors Local 8

Ironworkers Local 433

Jobs to Move America

JCRC of Jewish Silicon Valley

Jewish Center for Justice

Jewish Community Relations Council of Sacramento

Jewish Democratic Club of Silicon Valley

Jewish Family and Children’s Service of Long Beach and Orange County

Jewish Family Service of San Diego

Jewish Family Services of Silicon Valley

Jewish Federation of the Greater San Gabriel and Pomona Valleys

Jewish Federation of the Sacramento Region

Jewish Long Beach

Jewish Public Affairs Committee of California

Jewish Silicon Valley

JVS SoCal

North Bay Labor Council

Pillars of the Community

Progressive Zionists of California

Sacramento Central Labor Council, AFL-CIO

San Diego Black Workers Center

TechEquity Collaborative

Unemployed Workers United

United Automobile Workers, Region 6

United Food and Commercial Workers, Western States Council

UNITE HERE, AFL-CIO

United Nurses Associations of California/Union of Health Care Professionals

Utility Workers Union of America

Warehouse Worker Resource Center

Worksafe

OPPOSITION

Acclamation Insurance Management Services

Agricultural Council of California

Allied Managed Care

Associated General Contractors of California

Associated General Contractors-San Diego Chapter

Association of California Healthcare Districts

Brea Chamber of Commerce

California Apartment Association

California Association for Health Services at Home

California Association of Sheet Metal and Air Conditioning Contractors National Association

California Association of Winegrape Growers

California Attractions and Parks Association

California Bankers Association

California Business Properties Association

California Business Roundtable

California Chamber of Commerce

California Credit Union League

California Employment Law Council

California Farm Bureau

California Grocers Association

California Hotel & Lodging Association

California Landscape Contractors Association

California League of Food Producers

California Lodging Industry Association

California Manufactures & Technology Association

California Restaurant Association

California Retailers Association

California State Council of the Society for Human Resource Management

Chino Valley Chamber of Commerce

Coalition of California Chambers – Orange County

Coalition of Small and Disabled Veteran Businesses

Construction Employers’ Association

Corona Chamber of Commerce

Family Business Association of California

Flasher Barricade Association

Fontana Chamber of Commerce

Fresno Chamber of Commerce

Gilroy Chamber of Commerce

Glendora Chamber of Commerce

Greater Coachella Valley Chamber of Commerce

Greater High Desert Chamber of Commerce

Greater San Fernando Valley Chamber of Commerce

Hollywood Chamber of Commerce

Housing Contractors of California

Independent Lodging Industry Association

La Cañada Flintridge Chamber of Commerce

Murrieta/Wildomar Chamber of Commerce

National Federation for Independent Business

Oceanside Chamber of Commerce

Official Police Garage Association of Los Angeles

Palos Verdes Peninsula Chamber of Commerce

Paso Robles Chamber of Commerce

Roseville Area Chamber of Commerce

San Juan Capistrano Chamber of Commerce

Santa Clarita Valley Chamber of Commerce

Santee Chamber of Commerce

Simi Valley Chamber of Commerce

South County Chambers of Commerce

Southwest California Legislative Council

Templeton Chamber of Commerce

Torrance Area Chamber of Commerce

Tri County Chamber Alliance

Tulare Chamber of Commerce

Vacaville Chamber of Commerce

Vista Chamber of Commerce

Western Growers Association

Yorba Linda Chamber of Commerce

RELATED LEGISLATION

Pending Legislation: None known.

Prior Legislation: None known.

PRIOR VOTES:

Senate Labor and Public Employment Committee (4 to 1)

**************

AMENDMENTS

SECTION 1. Chapter 9 (commencing with Section 1137) is added to Part 3 of Division 2 of the Labor Code, to read:

CHAPTER  9. Employer Intimidation

1137. (a) This chapter shall be known, and may be cited, as the “California Worker Freedom from Employer Intimidation Act.”

(b) As used in this section, the following definitions apply:

(1) “Employee” means any individual who performs services for and under the control and direction of an employer for wages or other remuneration.

(2) “Employer” means any individual, partnership, association, corporation, or any agent, representative, designee or person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent and shall include all branches of state government, or the several counties, cities and counties, and municipalities thereof, or any other political subdivision of the state, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.

(3) “Political matters” means 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.

(4) “Religious matters” means matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.

(5) “Rights guaranteed by the First Amendment to the United States Constitution or Section 2, 3, or 4 of Article I of the California Constitution” includes, but is not limited to, the rights of freedom of speech, freedom of association, and freedom of religion.

(c) An employer, except as provided in subdivisions (f) and (g), shall not subject, or threaten to subject, an employee to discharge, discrimination, retaliation, or any other adverse action because the employee declines require its employees 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 matters, or political matters, or rights guaranteed by the First Amendment to the United States Constitution or Section 2, 3, or 4 of Article I of the California Constitution.

(d) Upon the filing of a complaint by an employee, the Division of Labor Standards Enforcement shall enforce this section.

(e) (1) Alternatively to subdivision (d), any employee who the employer has subjected, or threatened to subject, to discharge, discrimination, retaliation, or any other adverse action on account of the employee’s refusal to attend an employer-sponsored meeting may bring a civil action in a court of competent jurisdiction for damages caused by that adverse action, including punitive damages, and for reasonable attorney’s fees as part of the costs of any such action for damages.

(2) In any civil action brought pursuant to paragraph (1), an employee or their exclusive representative may petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief.

(f) This section does not prohibit any of the following:

(1) An employer or its agent, representative, or designee from communicating to its employees any information that the employer is required by law to communicate, but only to the extent of that legal requirement.

(2) An employer or its agent, representative, or designee from communicating to its employees any information that is necessary for those employees to perform their job duties.

(3) An institution of higher education, or any agent, representative, or designee of that institution, from meeting with or participating in any communications with its employees that are part of coursework, any symposia, or an academic program at that institution.

(4) A requirement limited to the employer’s managerial and supervisory employees.

(g) This section does not apply to any of the following:

(1) A religious corporation, entity, association, educational institution, or society that is exempt from the requirements of Title VII of the Civil Rights Act of 1964 (Public Law 88-352) pursuant to 42 U.S.C. 2000e-1(a) or is exempt from employment discrimination protections of state law, including, but not limited to, subdivision (d) of Section 12926 of the Government Code, except as provided in Section 12926.2 of the Government Code, and subdivision (d) of Section 98.6 of the Labor Code, with respect to speech on religious matters to employees who perform work connected with the activities undertaken by that religious corporation, entity, association, educational institution, or society.

(2) A political organization or party requiring its employees to attend an employer-sponsored meeting or to participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s political tenets or purposes.

(3) An educational institution requiring a student or instructor to attend lectures on political or religious matters that are part of the regular coursework at the institution.

(h) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

1. This bill is analyzed as proposed to be amended. A mock-up of the bill with amendments is provided at the end of the analysis. The amendments are subject to any nonsubstantive changes the Office of Legislative Counsel may make. ↑

2. This existing law section reflects the bill as proposed to be amended in the mock-up at the end of the analysis. ↑

3. See First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 784-785. ↑

4. See, e.g., Hill v. Colorado (2000) 530 U.S. 703, 718. ↑

5. ORS 659.785 (1). ↑

6. Conn. Gen. Stat. §§ 31-51q; Public Act No. 22-24. ↑

7. Chamber of Commerce of the United States of America v. Bartolomeo, 3:22-CV-01373. ↑

8. National Labor Relations Board; About NLRB: Interfering with employee rights (Section 7 & 8(a)(1)) available at: https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/interfering-with-employee-rights-section-7-8a1 [as of April 23, 2023] ↑

9. Citations omitted throughout. ↑

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Dave Cortese, Chair

2023 - 2024 Regular

Bill No: SB 399 Hearing Date: April 12, 2023

SUBJECT: Employer communications: intimidation

KEY ISSUES

Should the Legislature prohibit an employer from requiring its employees to attend an employer-sponsored meeting or any communications, the purpose of which is to communicate the employer’s opinion about religious or political matters, or certain rights guaranteed by the United States and California Constitution?

Should employees be authorized to file a complaint or civil action against their employer for alleged violations of these protections?

ANALYSIS

Existing federal law:

1. Under the National Labor Relations Act (NLRA) makes clear that it is the policy of the United States to encourage collective bargaining by protecting workers’ full freedom of association. The NLRA protects workplace democracy by providing employees at private-sector workplaces the fundamental right to seek better working conditions and designation of representation without fear of retaliation. (NLRA or the Act; 29 U.S.C. §§ 151-169)
2. Establishes the National Labor Relations Board (NLRB) as an independent federal agency vested with the power to safeguard employees’ rights to organize, engage with one another to seek better working conditions, choose whether or not to have a collective bargaining representative negotiate on their behalf with their employer, or refrain from doing so. The NLRB also acts to prevent and remedy unfair labor practices committed by private sector employers and unions, as well as conducts secret-ballot elections regarding union representation. (29 U.S.C. §153)

Existing state law:

1. Under the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975, provides that it is the policy of the state to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives, self-organization, or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. (Labor Code §1140-1166.3)
2. Provides the Labor Commissioner with authority to be assigned claims for loss of wages that arise from retaliation for lawful conduct occurring during nonworking hours and away from the employer’s premises. (Labor Code §96)
3. Prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy:
   1. Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
   2. Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

(Labor Code §1101)

1. Prohibits an employer from coercing, influencing, or attempting to coerce or influence employees through or by means of threat of discharge or loss of employment to adopt or follow, or refrain from adoption or following, any particular course or line of political action or political activity. (Labor Code §1102)
2. Establishes within the Department of Industrial Relations (DIR) and under the direction of the Labor Commissioner, the Division of Labor Standards Enforcement (DLSE) tasked with administering and enforcing labor code provisions concerning wages, hours and working conditions. (Labor Code §56)

This bill:

1. Enacts the “California Worker Freedom from Employer Intimidation Act” to prohibit an employer, except as specified, from requiring its employees to attend an employer-sponsored meeting or participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s opinion about religious matters, political matters, or rights guaranteed by the First Amendment to the United States Constitution or Section 2, 3, or 4 of Article I of the California Constitution.
2. Defines “employer” as any individual, partnership, association, corporation, or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent and shall include all branches of state government, or the several counties, cities and counties, and municipalities thereof, or any other political subdivision of the state, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.
3. Defines “political matters” as 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.
4. Defines “religious matters” as matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.
5. Specifies that “rights guaranteed by the First Amendment to the United States Constitution or Section 2, 3, or 4 of Article I of the California Constitution” includes, but is not limited to, the rights of freedom of speech, freedom of association, and freedom of religion.
6. Requires the Division of Labor Standards Enforcement to enforce these protections upon the filing of a complaint by an employee.
7. Alternatively to filing a complaint with DLSE, an employee who the employer has subjected, or threatened to subject, to discharge, discrimination, retaliation, or any other adverse action on account of the employee’s refusal to attend an employer-sponsored meeting may bring a civil action in a court of competent jurisdiction for damages caused by that adverse action, including punitive damages, and for reasonable attorney’s fees as part of the costs of any such action for damages.
   1. Specifies that in any such civil action, an employee or their exclusive representative may petition the superior court, as specified, for appropriate temporary or preliminary injunctive relief.
8. Provides that these provisions do not prohibit an employer or its agent, representative, or designee from any of the following:
   1. Communicating to its employees any information that the employer is required by law to communicate, but only to the extent of that legal requirement.
   2. Communicating to its employees any information that is necessary for those employees to perform their job duties.
   3. For institutions of higher education, from meeting with or participating in any communications with its employees that are part of coursework, any symposia, or an academic program at that institution.
   4. A requirement limited to the employer’s managerial and supervisory employees.
9. Exempts the following from these provisions:
   1. A religious corporation, entity, association, educational institution, or society that is exempt from the requirements of Title VII of the Civil Rights Act of 1964, as defined, or is exempt from employment discrimination protections of state law, as specified, with respect to speech on religious matters to employees who perform work connected with the activities undertaken by that religious corporation, entity, association, educational institution, or society.
   2. A political organization or party requiring its employees to attend an employer-sponsored meeting or to participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s political tenets or purposes.
   3. An educational institution requiring a student or instructor to attend lectures on political or religious matters that are part of the regular coursework.
10. Provides that these provisions are severable and if any provision or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

COMMENTS

1. Background: Captive Audience Meetings

Captive audience meetings are 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. Critics of these meetings argue that they are used to intimidate workers and spread the employers’ personal views on various issues. Employers argue the practice as being part of freedom of speech.

On April 07, 2022, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all field offices announcing that she would be asking the Board to find mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, including captive audience meetings, a violation of the National Labor Relations Act (NLRA). According to General Counsel Abruzzo, in workplaces across America, employers routinely hold mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, especially during organizing campaigns.^[1]

General Counsel Abruzzo further explained that “the Board has long-recognized that the Act protects employees’ right to listen to—or refrain from listening to—employer speech concerning their rights to act collectively to improve their workplace. Forcing employees to attend captive audience meetings under threat of discipline discourages employees from exercising their right to refrain from listening to this speech and is therefore inconsistent with the NLRA.”

According to an Economic Policy Institute study, between 1999-2003, 63% of employers interrogated workers in mandatory one-on-one captive audience meetings and 54% of employers threaten workers in such meetings.^[2]

2. Similar Efforts in Other States:

According the sponsors, SB 399 is modeled on a 2022 bipartisan bill signed into law in Connecticut that regulates the same employer conduct. Connecticut’s Act Protecting Employee Freedom of Speech and Conscience, enacted in May 2022, prohibits an employer from coercing employees into attending or participating in meetings sponsored by the employer concerning the employer's views on political or religious matters. The bill does not prevent employees from agreeing to go to a meeting where their employer argues against unionization, but it does prevent an employer from disciplining or firing employees who choose not to attend that type of event.

The Connecticut Business and Industry Association, the U.S. Chamber of Commerce, the Associated Builders and Contractors, the Associated Builders and Contractors of Connecticut, the National Federation of Independent Business and several other organizations joined in filing a federal lawsuit in November 2022, alleging the captive audience law is unconstitutional. The State Defendants moved to dismiss the case and in February 2023, the U.S. Chamber and coalition filed opposition to the State’s motion and the case continues under litigation.

Similar laws exist in Oregon and Wisconsin. In 2009, Oregon became the first state to pass such a law. Although the law was challenged by the Associated Oregon Industries and the Chamber of Commerce, the federal District of Oregon upheld it. However, the court never reached the merits of the case, instead disposing of it on standing and ripeness grounds.  

Wisconsin passed its own captive audience ban in May 2010, but when business groups challenged the law in federal court, the State agreed to a settlement in which it acknowledged that the prohibition on captive audience meetings was preempted by the NLRA. Other states, including Connecticut, West Virginia, New Mexico, Michigan, and Washington, have proposed similar legislation, but none of the bills have passed.

3. Need for this bill?

According to the author, “In most workplaces, workers are “at will” and can be fired at any time for almost any reason. That gives employers tremendous power to pressure workers to do as they say. For example, some employers attempt to coerce workers into voting for the employer’s preferred candidate or adhering to their religious or ideological beliefs. Often meetings on such topics are mandatory and workers are not permitted to leave or speak out.” Furthermore, the author argues, “We live in highly polarized times where political discussions occur all too frequently in the workplace. No worker should be subject to forced indoctrination by their employer on politics, religion, or for exercising their protected rights on the job.”

According to the author, “The California Employers Association offers trainings to employers on how to hold captive audience meetings stating that “Now is the time to get up to speed on union awareness and avoidance training efforts.”^[3] At a 2022 summit of the National Restaurant Association’s legal wing, speakers told the audience that “for now, captive audience meetings are fine” and that union avoidance tactics like “old-fashioned captive audience [speeches],”^[4] remain the same despite the changing demographics of the workforce.”

The author believes that “SB 399 is needed to prevent employers from coercing workers to listen to speech about core matters of individual conscience—politics and religion. It clarifies that workers have the freedom not to listen to their employers’ views on religious or political matters including support or opposition of political parties or unions, during mandatory meetings, often called captive audience meetings.”

4. Proponent Arguments:

According to the sponsors of the measure, the California Labor Federation and the California Teamsters Public Affairs Council, “The effectiveness of captive audience meetings has led to employers using these forced meetings for political and religious purposes. The Royal Dutch Shell company invited then-candidate Trump to give a speech at their facility in 2019. The employers sent a memo to workers stating that attendance of the Trump rally was “not mandatory,” but that if they did not clock in to work that day they would lose pay and become ineligible to receive the 16 hours of overtime pay. Workers who attended were told “anything viewed as resistance” would not be tolerated at the event.^[5]

These are the most egregious examples of political captive audience meetings, but employers are getting more sophisticated with the help of the Business-Industry Political Action Committee (BIPAC). BIPAC partners with major companies, including Exxon Mobil, Yum Brands, Wendy’s, Halliburton, and many others to advise them on how to “transform your employees into an army of pro-business voters” and “mobilize employees to drive success for your policy priorities.”2 BIPAC is developing and deploying the tools employers can and will use to force workers to listen to their political agenda and even to participate in it.^[6]”

Sponsors further argue that other examples of coercion happen when workers advocate for their rights and write, “In California, Amazon workers in Moreno Valley endured multiple captive audience meetings where they were told they would lose their benefits if they unionized. Workers in Davis accused Peet’s Coffee of holding anti-union captive audience meetings, including flying in the president of the company, to unsuccessfully prevent workers from unionizing. Google, REI, Apple Stores, and many more employers have held captive audience meetings after workers began advocating for their rights on the job.”

They conclude by stating that, “This bill does not infringe on free speech rights and employers are still free to discuss their views with workers, so long as they do not coerce or force them to listen against their will. SB 399 is modeled on a 2022 bipartisan bill signed into law in Connecticut that regulates the same employer conduct. Similar laws exist in Oregon and Wisconsin.”

5. Opponent Arguments:

A coalition of employers, including the California Chamber of Commerce, are opposed to the measure arguing that it’s overbroad provisions effectively prohibit any discussion of political matters in the workplace and are unnecessary in light of existing California and federal laws that protect employees from any coercion related to their political beliefs or activities. According to the coalition, “It appears the intent of SB 399 is to effectively chill any communications by the employer or in the workplace about political matters.” They write, “for example, even if an employer explicitly says that employees are not required to attend a meeting, an employee could claim that they still felt required to attend because others were attending or some sort of benefit was being provided, like a meal or face time with a manager.”

They additionally argue that, “SB 399 also puts employers in a difficult place regarding restricting individual employees’ speech. Under the NLRA, for example, the employer cannot stop an employee from discussing the merits of unionization or for talking to coworkers about how they support a candidate that wants to increase minimum wage. How can an employer simultaneously allow that speech while also ensuring that they are not violating SB 399?”

Furthermore, they argue, “Because SB 399 creates a new section of the Labor Code, any good faith error in interpreting the bill or its exceptions creates liability under the Private Attorneys General Act (PAGA), which carries significant penalties of $100 to $200 per employee per pay period. Because trial attorneys walk away as the winners under PAGA by taking at least one third of the total settlement or court award while workers often get mere pennies, SB 399 creates an enticing new cause of action for lawyers to manipulate for financial gain.”

The coalition also argues that the bill violates the First Amendment because it prohibits employers from providing a forum for discussion, debate and expressing their opinions regarding matters of public concern, which is protected under the First Amendment. They argue, “it is clear that the motive behind SB 399’s prohibition on employers discussing their opinions about unionization is the assumption that employers will talk to their employees about the downsides of unionization, which the proponents of this bill disagree with. That is clear viewpoint-based discrimination, which also runs afoul of the First Amendment.”

Lastly, the coalition believes the bill is preempted by the NLRA arguing, “the NLRB stated that Congress had intended for both employers and unions to be free to influence employees as long as the speech is noncoercive.” They also argue, “similar laws have been enacted four times in other states. One was struck down, one was repealed because the state agreed that the provision was preempted by the NLRA, one lawsuit was dismissed solely based on a ripeness issue, and the fourth is presently in litigation.”

6. Double Referral:

This bill has been double referred and if approved by this Committee today, will be sent to Senate Judiciary Committee for a hearing.

SUPPORT

California Labor Federation (Co-Sponsor)

California Teamsters Public Affairs Council (Co-Sponsor)

American Federation of State, County and Municipal Employees (AFSCME)
Alameda Labor Council
American Federation of Labor and Congress of Industrial Unions, AFL-CIO
California Conference Board of The Amalgamated Transit Union
California Conference of Machinists
California Federation of Teachers, AFL-CIO
California IATSE Council
California Nurses Association
California Professional Firefighters
California Rural Legal Assistance Foundation, INC.
California State Legislative Board, Sheet Metal, Air, Rail and Transportation Workers –

Transportation Division (SMART-TD)
California Teachers Association
Center on Policy Initiatives
Central Coast Labor Council
Clergy and Laity United for Economic Justice
Contra Costa Central Labor Council
Engineers and Scientists of California, IFPTE Local 20, AFL-CIO
Ironworkers Local 433
Jobs to Move America
Pillars of The Community
Sacramento Central Labor Council, AFL-CIO
San Diego Black Workers Center
Techequity Collaborative
UAW Region 6
Unemployed Workers United
UNITE HERE, AFL-CIO
United Food and Commercial Workers, Western States Council
United Nurses Associations of California/Union of Health Care Professionals
Utility Workers Union of America
Warehouse Worker Resource Center
Worksafe

OPPOSITION

Acclamation Insurance Management Services
Agricultural Council of California
Allied Managed Care
Associated General Contractors of California
Associated General Contractors San Diego Chapter
Association of California Healthcare Districts (ACHD)
Brea Chamber of Commerce
California Apartment Association
California Association for Health Services At Home
California Association of Sheet Metal & Air Conditioning Contractors National Association
California Association of Winegrape Growers
California Business Properties Association
California Business Roundtable
California Chamber of Commerce
California Credit Union League
California Employment Law Council
California Farm Bureau
California Grocers Association
California Hotel & Lodging Association
California League of Food Producers
California Lodging Industry Association
California Manufactures & Technology Association
California Restaurant Association
California Retailers Association
California State Council of The Society for Human Resource Management (CALSHRM)
Coalition of California Chambers – Orange County
Coalition of Small and Disabled Veteran Businesses
Construction Employers' Association
Corona Chamber of Commerce
Family Business Association of California
Flasher Barricade Association
Fontana Chamber of Commerce
Gilroy Chamber of Commerce
Greater Coachella Valley Chamber of Commerce
Greater High Desert Chamber of Commerce
Greater San Fernando Valley Chamber of Commerce
Hollywood Chamber of Commerce
Housing Contractors of California
Independent Lodging Industry Association.
LA Canada Flintridge Chamber of Commerce
Murrieta Wildomar Chamber of Commerce
National Federation of Independent Business
Oceanside Chamber of Commerce
Official Police Garage Association of Los Angeles
Palos Verdes Peninsula Chamber of Commerce
Paso Robles Chamber of Commerce
Roseville Area Chamber of Commerce
San Juan Capistrano Chamber of Commerce
Santa Clarita Valley Chamber of Commerce
Santee Chamber of Commerce
Simi Valley Chamber of Commerce
South County Chambers of Commerce
Southwest California Legislative Council
Templeton Chamber of Commerce
Torrance Chamber of Commerce
Tri County Chamber Alliance
Tulare Chamber of Commerce
Vacaville Chamber of Commerce
Vista Chamber of Commerce
Western Growers Association
Yorba Linda Chamber of Commerce

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