The 12 Days of California Labor and Employment Series – Day 7 "Captive Audience Meetings – Not Mandatory Anymore"

In the spirit of the season, we are using our annual "12 Days of California Labor and Employment" blog series to address new California laws and their impact on employers. On the seventh day of the holidays, my labor and employment attorney gave to me seven swans a-swimming and SB 399.

As of January 1, 2025, California will join a growing list of states implementing laws regarding captive audience meetings. Employers have long used captive audience meetings to communicate their position and educate employees regarding a labor organization. In addition, the meetings allow them to respond to union promises to employees and discuss the items that unions often skip over, such as contract negotiation issues, strikes, and punishment for union employees who do not hit the picket line and promises they cannot keep. 

Currently, Connecticut, Maine, Minnesota, New York, Oregon, Washington, Illinois, and Vermont have bans on captive audience meetings. With the enactment of SB 399, California now does as well.

Current legal challenges regarding their respective bans are ongoing in Connecticut and Minnesota. It is suspected that there will be challenges to SB 399 as well. In addition to the various state laws on captive audience bans, the National Labor Relations Board (NLRB) issued a decision in Amazon.com Services LLC on November 13, 2024, holding that "captive-audience meetings" are unlawful under the National Labor Relations Act (NLRA). This decision reversed 76 years of precedent, which permitted employers to hold such meetings.

California Worker Freedom from Employer Intimidation Act

SB 399 prohibits an employer from requiring employee attendance at captive audience meetings, which are employer-sponsored, mandatory meetings on religious or political matters, which also include anti-unionization. 

An employer 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. Employers also cannot do so against an employee who 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.

• "Political matters" are defined as 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" are defined as matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.

Any such meeting discussing political or religious matters must be optional for the employee to attend. If an employee chooses not to attend such a meeting, the employer must continue to pay the employee while the meeting is being held.

An employer is still allowed to hold mandatory meetings regarding the following:

1. Any information that the employer is required by law to communicate, but only to the extent of that legal requirement;
2. Any information that is necessary for employees to perform their job duties;
3. Communicating with employees of an institution of higher education or any agent, representative, or designee of that institution that is part of the coursework, any symposia, or an academic program at that institution; or
4. Any information related to a policy of the public entity or any law or regulation that the public entity is responsible for administering.

Who Does SB 1100 Apply to? 

SB 399 applies to employers, which SB 399 defines 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 and shall include:

• all branches of state government, or the several counties, cities, and counties, and municipalities thereof or any other political subdivision of the state; or
• a school district, or any special district; or
• any authority, commission, board, or any other agency or instrumentality thereof.

Exceptions

SB 399 does not apply to the following:

• A religious corporation, entity, association, educational institution, or society that is exempt from the requirements of Title VII of the Civil Rights Act of 1964;
• A political organization or party requiring its employees to attend an employer-sponsored meeting or to participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s political tenets or purposes;
• 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;
• A nonprofit, tax-exempt training program requiring a student or instructor to attend classroom instruction, complete fieldwork, or perform community service hours on political or religious matters as it relates to the mission of the training program or sponsor;
• An employer requiring employees to undergo training to comply with the employer’s legal obligations, including obligations under civil rights laws and occupational safety and health laws; or
• A public employer holding a new employee orientation.

What are the Penalties for Noncompliance With SB 399?

Enforcement falls under the Labor Commissioner. An employer who violates SB 399 will be assessed a $500 penalty per employee for each violation. In addition, the Labor Commission can issue a citation or file a civil action. 

Alternatively, any employee who has suffered a violation under SB 399 may bring a civil action for damages, which includes punitive damages. An employee can also petition for temporary or preliminary injunctive relief.

Key Takeaways for California Employers

Notwithstanding the likelihood of a legal challenge to SB 399, employers are best advised to either refrain from holding captive audience meetings or to communicate to all employees the voluntary nature of any scheduled captive audience meetings.

If a meeting is held, the employer must ensure that all employees are paid even if they do not attend the meeting. In addition, employers should update their handbooks and policies and train the supervisors who generally schedule such meetings regarding the new process moving forward.