“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,” argues CalChamber.
The start of a new year is a time for beginnings, and in California, that invariably includes the arrival of new laws. Some laws will be good; others bad; and others arrive with such controversy that they prompt immediate legal challenges. The latter example describes SB 399, the latest and, possibly, most controversial recent labor bill over which California business groups are now suing the state.
The law in question makes it illegal for employers to require their employees to attend workplace meetings to hear about their “opinion about religious or political matters,” and imposes heavy fines for violations. Critics argue the law is overbroad, politically motivated, and unconstitutional.
The suit was filed in federal court by the California Chamber of Commerce and California Restaurant Association. In it, they outline why SB 399 likely violates the First Amendment and contradicts the federal National Labor Relations Act (NLRA).
“This Court can and should vindicate the federal constitutional rights of Plaintiffs and their respective members to engage in protected speech with their employees and, alternatively, end California’s intrusion into an area preempted and exclusively regulated by the NLRA,” the suit argues.
A major point of contention with the law is that it includes among its definition of “political matters” the subject of “[joining] or [supporting] any political party or political or labor organization.” As a point of clarification, the law is not about protecting workers from being unable to join unions, but penalizing employers for sharing their opinion about unions. Existing law prevents employers from coercing their employees to or from taking political action. SB 399 goes further by making it extremely difficult for business owners to discuss how changes in policy can affect their workplaces.
“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,” CalChamber wrote in its initial opposition letter. “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.”
“Employers have the right to express their views and opinions on many issues,” said California Restaurant Association President and CEO Jot Condie. “SB 399 creates restrictions that are unworkable and the unintended consequences of this new law outweigh any perceived benefit.”
SB 399 had, perhaps unsurprisingly, the backing of labor unions and was championed by union-endorsed politicians like the bill’s author, Senator Aisha Wahab (D-Hayward). Business leaders argue that these groups have a vested interest in legislation that potentially increases hostility in the private sector and emboldens litigious workers to sue their employers.
“If an employee opts out of this type of (political) speech and the employer assigns the worker to a different facility on the day they host a Legislator, can that employee now call that an adverse action ensue? We think yes,” argued Courtney Jensen on behalf of CalChamber during a meeting of the Assembly Standing Committee on Judiciary.
In their reporting on the suit, CalMatters’ Jeanne Kuang comments that a legal challenge is not surprising given the history of similar “captive audience meeting” laws in this country. When labor groups succeeded in passing their own in Wisconsin in 2009, business groups sued the state to prevent the statute’s enforcement and succeeded.
“The Supremacy Clause of the United States Constitution requires that state laws must yield to federal law when Congress has intended to regulate an entire field of law, or when state laws and federal law directly conflict,” wrote attorney Mark S. Wilkinson of the Wisconsin law. “Wisconsin agreed that the NLRA preempted its statute… The Badger State even agreed to pay the plaintiff-business groups’ legal fees associated with their challenge.”
But would that legal challenge succeed in California? It’s too early to say, but CalChamber remains confident SB 399 could be struck down. While several other states—such as Oregon—have their own form of ‘captive audience meetings’ laws in place, most have merely yet to see credible contests from plaintiffs with legal standing or are in the process of review.
“One local ordinance (similar to SB 399) 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 two more are presently in litigation,” writes CalChamber.
