A California Chamber of Commerce job killer bill that chills employer speech on certain matters, including unionization, awaits action in the Assembly Appropriations Committee.
The bill, SB 399 (Wahab; D-Hayward), chills employer speech regarding religious and political matters, including unionization. The bill is likely unconstitutional under the First Amendment and preempted by the National Labor Relations Act (NLRA).
SB 399 was first introduced last year and was placed on the Assembly Appropriations Committee’s suspense file earlier this year. The bill may be brought up for consideration again next month when legislators return from summer recess.
Limits on Employer Speech
SB 399 effectively prohibits discussions regarding political matters in the workplace, specifically preventing employers from requiring employees to attend “an employer-sponsored meeting” or “participate in, receive, or listen to any communications with the employer” where the purpose is to communicate the employer’s opinion “about” political matters. “Political matters” is broadly defined.
In an opposition letter, the CalChamber pointed out that the intent of SB 399 is to effectively chill any communications by the employer or in the workplace about political matters.
Because SB 399 creates a new section of the Labor Code, any good faith error in interpreting the bill or its exceptions creates liability, including under the Private Attorneys General Act (PAGA).
Moreover, California and federal law already protect against employer coercion related to political matters. For example, the NLRA prohibits employers from making any threats to employees, interfering with or restraining exercise of their rights, coercing employees, or promising benefits to employees for voting a certain way in a union election, and there are specific provisions in the Labor Code protecting employee engagement in political matters, the CalChamber explained.
First Amendment Rights
SB 399 likely violates the First Amendment. SB 399 is a content-based restriction on speech. For example, under the bill, an employer could require its employees to listen to communications about its opinion on a local sports team, but not about pending legislation. Content-based restrictions on speech are presumptively unconstitutional.
Additionally, SB 399 effectively prohibits employers from providing a forum for discussion, debate and expressing their opinions regarding matters of public concern, which is protected under the First Amendment. That holds true whether the speaker is an individual or a corporation.
Further, it is clear that the motive behind SB 399’s prohibition on employers discussing their opinions about unionization or pending bills is the assumption that employers will talk to their employees about the downsides of unionization and union-sponsored efforts.
“That is clear viewpoint-based discrimination, which also runs afoul of the First Amendment,” the CalChamber pointed out.
Preempted by NLRA
SB 399 forbids employers from requiring employees to attend “an employer-sponsored meeting” or “participate in any communications with the employer” where the purpose is to communicate the employer’s opinion about the decision to join or support a labor organization. That provision is preempted by the NLRA, the CalChamber said.
State law is preempted by the NLRA where it interferes with the National Labor Relations Board (NLRB) interpretation and enforcement of the NLRA, regulates activity that the NLRA protects, prohibits, or arguably protects or prohibits, or regulates conduct that Congress intended to be left to the “free play of economic forces.”
Employers have the right to express their views and opinions regarding labor organizations. The NLRB has stated that Congress had intended for both employers and unions to be free to influence employees as long as the speech is noncoercive.
The U.S. Supreme Court also held that Section 8(c) of the NLRA has been interpreted as implementing the First Amendment for employers and as congressional intent to encourage free debate on issues between labor and management, rebuking the position that employer meetings on this topic should be banned as inherently coercive, the CalChamber explained.
“It is evident that the NLRA protects the employer’s right to require employee attendance in meetings or participation in communications regarding its opinion on union organizing,” the CalChamber said. “Further, Section 8(c) was intended to create the ‘free play of economic forces’ by encouraging debate on the issue of unionization. SB 399’s prohibition on employers’ rights and interference with free debate over the issue of labor organizing means it is clearly preempted by the NLRA.”
Similar laws have been enacted in other states. One was struck down, one was repealed because the state agreed that the provision was preempted by the NLRA, one lawsuit was dismissed solely based on a ripeness issue, and two more are presently in litigation.
