On August 15, 2024, the Appropriations Committee of the California State Meeting handed SB 399 by a vote of 10–3. The invoice had handed the Senate in 2023 and has been with the Meeting since, ready for motion and a vote.
SB 399, the California Employee Freedom from Employer Intimidation Act, would prohibit employers from taking adversarial actions towards or threatening such actions towards staff who refuse to attend or take part in conferences the place an employer would talk its opinion about non secular or political issues, together with conferences about unionization. The ban can be enforced by the Division of Labor Requirements Enforcement, would permit an worker to hunt injunctive reduction for violations of the invoice, and offers for a personal proper of motion to get better damages brought on by the alleged adversarial motion.
The invoice is sponsored by the California Labor Federation, the California State Council of Teamsters, and is supported by quite a few employee organizations. The invoice is opposed by the California Chamber of Commerce and quite a few employer and enterprise organizations.
A ban on such conferences would restrict an employer’s capability to run an efficient counter to a union organizing marketing campaign. Employers generally make the most of such conferences throughout union organizing drives to coach staff relating to the realities of unionization and the employer’s opinion on the subject. Whereas the ban doesn’t explicitly ban an employer from holding such voluntary conferences, they do arguably restrict the rights supplied to employers beneath 8(a) of the Nationwide Labor Relations Act, which permits employer free speech.
Given the subject material coated by the invoice, together with unionization, there are potential authorized challenges to this ban on grounds that it’s unconstitutional beneath the First Modification and is preempted by the Nationwide Labor Relations Act.
Different States Have Handed Related Bans
A minimum of seven different states together with Connecticut, Maine, Minnesota, New York, Oregon, Washington, Hawaii and Illinois have enacted related bans. These bans, just like the proposed California invoice, prohibit employers from taking adversarial motion towards staff who refuse to attend or take part in employer conferences the place employer communicates the opinion of the employer about political issues. The bans in Minnesota and Connecticut have been challenged in federal courtroom as violating employer free speech and as being preempted beneath the Nationwide Labor Relations Act.
Such Bans Are Additionally Favored by Present Normal Counsel of the Board
As we reported on beforehand, Normal Counsel of the Nationwide Labor Relations Board, Jennifer Abruzzo urged the Board to rule that such captive viewers conferences violate the Nationwide Labor Relations Act. Such a ruling would restrict an employer’s free speech rights beneath 8(c) to the NLRA and reverse 75 years of Board precedent. The Board has not but made such a ruling. Given the present Democratic Board and the variety of current selections from the Board that favor unions and staff, the Board could agree with the Normal Counsel’s place and maintain that obligatory conferences are illegal.
Key Takeaways
Employers who change into concerned in union campaigning efforts have to be cautious when making an attempt to arrange conferences to coach staff relating to the union marketing campaign. Whereas the ban has not handed in California, employers could wish to rethink whether or not to carry obligatory “captive viewers” conferences—and as a substitute maintain voluntary conferences—particularly given the Normal Counsel’s view on the conferences, and to forestall any potential unfair labor apply costs with the NLRB.