On September 30, 2024, Governor Gavin Newsom signed into legislation SB 399. Beginning January 1, employers are formally banned from holding captive viewers conferences—necessary employer-sponsored conferences that debate spiritual or political issues—that are a typical and accepted protection in opposition to union organizing.
SB 399, the California Employee Freedom from Employer Intimidation Act, prohibits employers from taking antagonistic actions in opposition to or threatening such actions in opposition to staff who refuse to attend or take part in conferences the place an employer would talk its opinion about spiritual or political issues which embody conferences about unionization. Employers could proceed to carry such conferences so long as attendance is voluntary.
The ban might be enforced by the Division of Labor Requirements Enforcement and can permit an worker to hunt injunctive aid for violations of the invoice and gives for a non-public proper of motion to get well damages brought on by the alleged antagonistic motion. California employers will face a $500 per worker superb in the event that they make staff sit via anti-unionization conferences.
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 means 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 concerning the realities of unionization and the employer’s opinion on the subject. Whereas the ban doesn’t explicitly prohibit an employer from holding voluntary conferences on such subjects, it does arguably restrict the rights offered to employers underneath Part 8(c) of the Nationwide Labor Relations Act (“NLRA”), which protects employer free speech. Due to this fact, we anticipate that will probably be challenged as unconstitutional underneath the First Modification and preempted by the NLRA, as challenges made to comparable bans in different states.
Different States Have Handed Related Bans
California is the tenth state to ban captive viewers conferences, becoming a member of Connecticut, Hawaii, Illinois, Maine, Minnesota, New York, Oregon, Washington, and Vermont. The bans enacted in these states, just like California’s, prohibit employers from taking antagonistic motion in opposition to staff who refuse to attend or take part in employer conferences the place employer communicates the opinion of the employer about political and/or union issues.
The Minnesota Chapter of Related Builders and Contractors and the Nationwide Federation of Unbiased Enterprise challenged the Minnesota ban on employer free speech and preemption grounds, just lately surviving the State’s movement to dismiss problem. In the meantime, the US Chamber of Commerce together with a coalition of employer teams filed a lawsuit difficult the Connecticut legislation; the plaintiffs’ movement for abstract judgment is ready to be heard on November 18.
State lawmakers in Alaska, Massachusetts, New Mexico, and Rhode Island have additionally launched captive viewers payments within the final yr, which stay into account.
Captive Viewers Bans Are Favored by the Board’s Common Counsel
As we reported beforehand, Nationwide Labor Relations Board Common Counsel Jennifer Abruzzo urged the Board to rule that such captive viewers conferences violate the NLRA. Such a ruling, which has not but been made, would restrict employer free speech rights underneath 8(c) of the NLRA and reverse 75 years of Board precedent allowing such conferences. Given the Board at present has a Democratic majority and the variety of latest selections favoring unions, the Board is more likely to agree with Common Counsel Abruzzo’s place and maintain that necessary conferences are illegal (assuming there is no such thing as a change within the administration and the Board retains a Democratic majority).
Key Takeaways
Employers shouldn’t rely on SB 399 being enjoined earlier than January 1. Employers who change into concerned in union campaigning efforts ought to be cautious when trying to arrange conferences regarding unionization and may think about taking the next steps to adjust to the brand new captive viewers legislation.
- Seek the advice of with native labor counsel for steerage on this evolving space of the legislation and tailor a compliance technique in your firm that minimizes authorized threat underneath SB 399 and the NLRA if your organization decides it desires to speak about unionization or a union marketing campaign.
- Prepare your front-line supervisors and managers on the parameters of conferences regarding unionization.
- Think about speaking to staff the aim of any conferences regarding unionization and emphasize the voluntary nature of them (ideally in writing).
- Think about methods for workers to acknowledge the voluntary nature of any conferences that arguably fall underneath the “captive viewers” definition underneath SB 399 with out working afoul to points underneath the NLRA (e.g., surveillance or creating the impression of surveillance).