Legislative Update: California Worker Freedom from Employer Intimidation Act (SB 399)

We recently wrote about a group of employment law bills signed by California Governor Gavin Newsom, which included Senate Bill (SB) 399, also known as the California Worker Freedom from Employer Intimidation Act.  We thought we would explore this new law regarding workplace captive audience meetings a little more in depth so that employers will avoid the potential pitfalls addressed by this legislation.

What is a captive audience meeting? 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 that the practice is part of freedom of speech.

Taking a look at existing federal and state law:

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:

    o   Prohibits employers from adopting or enforcing any rule, regulation, or policy: a) forbidding or preventing employees from engaging or participating in politics     or from becoming candidates for public office. b) controlling or directing, or tending to control or direct the political activities or affiliations of employees. (Labor     Code §1101)

    o   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)

    o   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)

    o   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)

What does the new law do?

• 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.
• 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 opinion about religious or political matters, as defined.

• 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.

•  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.

• 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.

•  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.

• As an alternative 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.

        o   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.

•    Provides that these provisions do not prohibit an employer from any of the following:

o   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.

o   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.

o   Communicating to its employees any information that is necessary for those employees to perform their job duties.

o   Communicating to its employees any information that the employer is required by law to communicate, but only to the extent of that legal requirement.

Employers, let’s get those employee handbooks updated for 2025! Please contact Rosasco Law Group for information on this or any other employment law that needs to be addressed in your handbook.