New California Law – SB 399 – Potentially Limits Employers’ Free Speech Rights

Scope of SB 399

The new law prohibits California employers from subjecting an employee “to discharge, discrimination, retaliation, or any other adverse action” because the employee declines to attend “an employer-sponsored meeting” or declines to “participate in, receive, or listen to any communications with the employer” regarding the employer’s view about “religious or political matters.” The law defines “political matters” broadly as anything relating to “elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or labor organization.” Similarly broadly, the law defines “religious matters” as anything “relating to religious affiliation and practice and the decision to join or support any religious organization or association.”

Enforcement of SB 399

Affected employees may enforce the law by doing one of two things: (1) filing a complaint with the California Division of Labor Standards Enforcement or (2) filing a civil action in superior court seeking damages caused by the alleged adverse action, including punitive damages, and/or appropriate temporary or preliminary injunctive relief.

Employer Challenges to SB 399

Although SB 399 will not take effect until 2025, employers will likely challenge SB 399 by using the same arguments as employers in other states, namely, that the law is: (1) unconstitutional under the First Amendment, (2) preempted by Section 8(c) of the National Labor Relations Act (NLRA), and/or (3) so overbroad and/or vague as to impermissibly impact the free speech rights of all employers.

With specific regard to NLRA preemption, opponents will argue that, since its enactment in 1935, Section 8(c) of that law has permitted employers to freely communicate their views to employees on potential unionization and related labor relations matters, as long as the speech does not contain either “threats of force or reprisals or promises of benefits” regarding the employer’s opinions on these matters. Accordingly, since the NLRA already sanctions captive audience meetings conducted by employers with employees during working time regarding union and labor-related issues, opponents will argue that SB 399 is in clear conflict with and, therefore, obviously preempted by, this longstanding federal law.

What Should Employers Do?

In the coming months, employers should carefully review their current policies related to workplace communications, specifically those involving political, religious and/or union-related topics. Employers may also want to consider whether it is in their company’s best interest to make attendance by employees at captive audience meetings regarding these specific issues voluntary. Moreover, employers should ensure that supervisors and managers understand the “dos and don’ts” of communicating with employees on these salient issues, and, in particular, how to handle any employee questions about them.

Finally, because California employers may need to modify existing practices, employers should consult with competent and well-informed legal counsel for guidance on how best to maintain legally compliant workplaces.

Read our previous discussion on this topic here.