California has a habit of finding creative ways to protect employees from potential instances of discrimination or retaliation, no matter how remote.  Senate Bill 399, pointedly titled the “California Worker Freedom from Employer Intimidation Act” (“SB 399”), furthers this tradition by prohibiting employers from subjecting an employee to, or threatening an employee with, discharge, discrimination, or retaliation because the employee declines to attend a mandatory employer-sponsored meeting or otherwise refuses to listen to the employer’s communications regarding its opinions about religious or political matters.

The trap for unwary employers lies in the statute’s definition of “political matters”, which are “matters related to elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization.”  Given recent union avoidance efforts by companies such as Starbucks, it is unsurprising that California has once again reacted to trends occurring in other states, despite being already the most employee-friendly state in the nation.  California follows Illinois, Connecticut, Hawaii, New York, and Oregon in enacting law that prohibit “captive audience” meetings on religious or political matters, including matters related to labor organizations.  Any employer in violation of SB 399 will be subject to a $500 penalty per employee for each violation, which may be enforced either by the Labor Commissioner or through a private civil suit.

Exceptions abound for this new law, both in terms of the content of the meeting or communication and the categories of employers subject to the statute.  Specifically, employers are not prohibited from communicating any of the following:

• Information that the employer is required by law to communicate (but only to the extent of that legal requirement);
• Information that is necessary for those employees to perform their job duties;
• For institutions of higher education only - communications with employees that are part of coursework, symposia, or an academic institution; and
• For public entity employers only – information related to a policy of the public entity or any law or regulation that the public entity is responsible for administering.

Further, SB 399 does not apply to the following employers:

• Certain religious entities and institutions;
• Political organizations or parties, where the purpose of the position is to communicate the political tenets or purposes;
• Educational institutions requiring lectures on political or religious matters as part of the coursework;
• Nonprofit, tax-exempt training programs that require classroom instruction, fieldwork, or community service hours on political or religious matters as it relates to the mission of the training program;
• Employers requiring training to comply with legal obligations, including obligations under civil rights laws and occupational safety and health laws; and
• Public employers holding a new employee orientation.

 Employers and employees can expect to see this new law challenged on a number of grounds.  Foremost among them is that the federal National Labor Relations Act (NLRA) preempts state law on “captive audience” meetings.  In fact, the U.S. Chamber of Commerce is has challenged these types of laws in other states, asserting that they are preempted by Section 8(c) of the NLRA and violate the First and Fourteenth Amendments.  Until guidance is issued on a federal level, however, employers should be prepared to follow this new law when it goes into effect on January 1, 2025.