California’s New Worker Freedom from Employer Intimidation Act

Senate Bill (SB) 399, the “California Worker Freedom from Employer Intimidation Act” (“Act”), will prohibit compelled attendance at employer-mandated meetings to discuss political and religious matters, including the decision to join or support a labor union. The Act adds the new Labor Code section 1137, and is effective January 1, 2025.

Prohibition Against Employer-Mandated Political and Religious Meetings:

The Act strictly prohibits employer-mandated meetings, sometimes referred to as “captive audience meetings,” in relation to a union’s organizing effort, or in which employees are required to attend and listen to the employer’s opinion about religious or political matters, including the decision to join or support a labor organization. A meeting is considered mandatory if an employee is subject to “discharge, discrimination, retaliation, or any other adverse action” because the employee declines to attend the meeting. The prohibition also applies where an employee declines to receive or listen to communications about the employer’s opinion about political or religious matters. Under the Act, “political matters” include 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. “Religious matters” include matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.

No Adverse Action for Failure to Attend:

If an employee is working at the time of the meeting and elects not to attend, they must continue to be paid while the meeting is held.

Employers cannot 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 covered by the Act, or declines to listen to any communications regarding the employer’s opinion about religious or political matters.

For purposes of the Act, the definition of employer includes an 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.

Applicability of the New Law and Exemptions:

In addition to applying to most private employers, the Act applies to all California branches of state government, cities, counties, special districts, political subdivisions of the state, and public school districts.  However, the Act expressly does not apply to:

• 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; or
• When an employer requires employees to undergo training to comply with the employer’s legal obligations, including obligations under civil rights laws and occupational safety and health laws.

The Act expressly does not prohibit an employer from communicating any of the following:

• Any information that the employer is required by law to communicate, but only to the extent of that legal requirement.
• Any information that is necessary to perform their job duties.
• An institution of higher education from participating in any communications with its employees that are part of coursework, any symposia, or an academic program at that institution.
• A public employer from communicating information related to a policy of the public entity or any law or regulation that the public entity is responsible for administering.

Penalties:

An employer who violates the new Act is subject to a civil penalty of $500. The California Labor Commission is authorized to enforce the Act.

In addition, any employee who has suffered a violation of the bill’s provisions is authorized to bring a civil action, and petition for injunctive relief.

Current Public Employer Restrictions on Political and Religious Activity in the Workplace:

California public employers are already subject to significant restrictions on political and religious activity in the workplace, and therefore the Act does not create significant changes for the public sector. For example:

1. Public officials in cities, counties, state agencies, political subdivisions, and special districts are prohibited from:

• Using their authority to influence the outcome of a person’s position, promotion, or compensation within agency;
• Soliciting political contributions from employees, except when part of solicitation of a significant segment of the public; and
• Participating in political activities of any kind while in uniform.[1]

Furthermore, by establishing rules and regulations, agencies may, and often do, prohibit or restrict officers and employees from engaging in political activity during working hours or on agency premises.[2]

2. Public employers cannot discourage public employees and applicants from:

• Becoming or remaining members of a labor organization,
• Authorizing labor representation, or
• Authorizing dues deduction for a labor organization.[3]

Of note, the Act expressly carves out an exception for a public employer holding a new employee orientation, as defined in Government Code Section 3555.5, or a provider holding an orientation as described in Welfare and Institutions Code Section 12301.24.

3. Before disseminating mass communications to public employees or applicants concerning employees’ rights to join or support a labor organization, or to refrain from joining or supporting a labor organization, public employers are required to meet and confer with the exclusive representative in advance regarding the content of the mass communication. If the public employer and the exclusive representative do not come to agreement on the content of the employer’s mass communication, the public employer must simultaneously distribute with its communication a separate communication of reasonable length submitted by the labor organization.[4]

4. The Establishment Clause of the U.S. Constitution, and provisions of the California Constitution, prohibit local government agencies from promoting or endorsing religion, and therefore a public employer cannot force employees to participate in religious activities, or promote one religion over another.

Potential Legal Challenge:

SB 399 will likely be subject to a legal challenge alleging that the Act violates First Amendment rights under the United States Constitution. In anticipation of such legal challenges, the Act contains a section that automatically severs any provision of the Act held legally invalid.

Next Steps for Employers:

While the Act has little impact on public employers, the new legislation creates an opportunity to review and update applicable policies and train supervisors regarding restrictions on political and religious activity in the workplace, including the new restrictions on mandatory, “captive audience” meetings. Attendance at any meetings that are covered by the Act should be strictly voluntary (and existing law strongly counsels against an agency hosting even non-mandatory employee meetings on religion or partisan politics). Employers are encouraged to reach out to their trusted legal advisors with any questions about SB 399.

For more information about new labor and employment legislation that will affect public agency employers, please join LCW for our Public Agency Legislative Roundup Webinar on October 24, 2024.

[1] Government Code §§ 3201-3209.

[2] Government Code § 3207.

[3] Government Code § 3550.

[4] Government Code § 3553.