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Judge Preliminarily Enjoins Workplace Political Speech Law
Federal Jurist Says Recently Adopted California Statute, Prohibiting Employers From Punishing Workers for Failing to Attend Mandatory Meetings Addressing Sensitive Topics, Likely Violates First Amendment
By Kimber Cooley, associate editor
A federal judge has preliminarily blocked the enforcement of a newly adopted Labor Code provision that bars employers from punishing workers for failing to attend mandatory meetings addressing religious and political topics, including the disadvantages of unionization, finding that the law likely violates the First Amendment and preemption principles.
District Court Judge Daniel J. Calabretta of the Eastern District of California on Tuesday granted the plaintiffs’ request for preliminary relief.
At issue is Labor Code §1137, which was adopted following the enactment of Senate Bill 399 last September. The section specifies:
“An employer…shall not subject, or threaten to subject, an employee to…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.”
Under the statutory scheme, an employee may “bring a civil action…for damages caused by that adverse action, including punitive damages,” and an employer who fails to comply “shall be subject to a civil penalty of [$500] per employee for each violation.” The statute specifically exempts certain religious, political, and educational institutions.
Complaint Filed
On Feb. 7, the California Chamber of Commerce and two employer-rights groups filed a complaint against California Attorney General Rob Bonta, asserting constitutional claims under 42 U.S.C. §1983 and requesting declaratory as well as injunctive relief.
In the pleading, the plaintiffs alleged:
“California has taken the extraordinary step of enacting legislation that imposes sanctions on employers who disseminate truthful information and express their opinions on matters of public concern—speech that ‘is at the heart of the First Amendment’s protection.’ ”
They added:
“SB 399 prevents employers from sharing true facts with employees about unionization, such as employees’ need to pay dues for representation, unions’ interference with employer-employee relationships, unions’ prioritization of the collective over the individual employees, and the financial impacts on employers. As a result, employees will be deprived of complete information and be unable to make informed choices about whether to unionize.”
Preliminary Relief
Calabretta said:
“With respect to preemption, the Court agrees that SB 399 is preempted by the National Labor Relations Act to the extent it purports to prohibit employers from requiring the presence of employees to communicate the employer’s message on unionization. The result is somewhat counterintuitive since the National Labor Relations Board interprets the Act to prohibit such meetings, but under the broad preemptive scope given to the Act, that matter is for the Board —not the States—to decide.”
He continued:
“Concerning the First Amendment challenge,...the Court concludes SB 399 is a content-based regulation of speech that cannot withstand strict scrutiny.”
First Amendment
Calabretta rejected the state’s characterization of the statute as regulating conduct as opposed to speech, saying:
“SB 399 does not facially prohibit employers from expressing their religious or political views. Rather, it prohibits certain measures, specifically, taking adverse employment action against an employee who does not wish to hear the employer’s communications…..[W]hile the Court agrees with Defendants’ contention that taking an adverse employment action is not expressive conduct, SB 399 has the inevitable effect of being directed toward employers who chose to engage in core expressive activity—sharing their opinions on religious and political matters.”
Under those circumstances, he opined:
“Consider the circumstances that arise where an employee sues her employer for violating SB 399. A decision maker would necessarily have to consider the content of the employer’s speech to determine whether taking the adverse employment action was appropriate. Because the ‘conduct regulated depends on—and cannot be separated from—the ideas communicated’ SB 399 regulates speech such that the First Amendment is implicated.”
The jurist pointed out that the law “involves political and religious speech,” two issues he described as being at the “core” of the First Amendment, and remarked:
“[T]he fact that SB 399 subjects categories of speech to different limitations compels the conclusion that it is a content-based regulation.”
Forced Attention
Bonta argued that the First Amendment does not encompass a right to force a listener to hear a speaker’s expression, saying that the law protects vulnerable employees from listening to their employer’s religious or political opinions under threat of losing their jobs.
Calabretta responded by pointing out that this captive-audience doctrine has only been applied by the U.S. Supreme Court sparingly. He wrote:
“The Court recognizes the imbalance between employers and employees and does not minimize the challenges that employees face in these circumstances. However, ‘we are often captives outside the sanctuary of the home and subject to objectionable speech.’
He continued:
The Supreme Court has repeatedly explained that the captive audience doctrine is to be applied narrowly given the serious consequences that come from limiting speech because an individual does not wish to hear it….Moreover, given [the] size of the American workforce, applying the captive audience line of cases to the employment context would greatly expand its application….Defendants have not adequately shown that this expansion is warranted.”
Strict Scrutiny
Applying strict scrutiny, Calabretta declined to find “the desire to protect captive audiences in the employment context to constitute a compelling interest” and said that the measure also fails a narrow-tailoring analysis, commenting:
“Here, Defendants argue that SB 399 would only reach discussions forced onto unwilling employees….SB 399 expands beyond that situation—covering meetings along with ‘any communications with the employer or its agents or representatives….’….This expansive reach creates a stronger likelihood of chilling speech, as employers who seek to avoid litigation may also refrain from using methods other than meetings to share their views. Moreover, it is not apparent that the Legislature’s concerns surrounding the captivity or coercion are present in the meeting context exists in the context of receiving a newsletter or walking by a flyer in the workplace hallway.”
Addressing preemption, he noted that the plaintiffs point to last year’s decision by the National Labor Relations Board (“NLRB”) in Amazon.com Services LLC, in which the commission changed its position on so-called “captive-audience” meetings and declared that the National Labor Relations Act (“NLRA”) prohibits employers from requiring employees to attend anti-union messaging campaigns as part of their employment.
He wrote:
“[A]s demonstrated by the Amazon decision, there appears to be a risk of interference with the NLRB’s primary jurisdiction. A cause of action under SB 399 would require showing that an employer took adverse action against an employee for failing to receive the employer’s communications pertaining to certain political and/or religious topics…. Although SB 399 has a broader scope…, there is still a substantial chance that there would be overlap with federal labor law.”
As to the remaining factors relevant to the analysis of whether preliminary relief is appropriate, he explained that the state conceded that the scale would tip in the plaintiffs’ favor in the event that the court found a likely violation of constitutional rights.
The case is California Chamber of Commerce v. Bonta, 2:24-cv-03798.
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