On September 30, 2025, the U.S. District Court preliminarily enjoined enforcement of SB 399, which prohibited employers from taking — or threatening to take — adverse actions against employees who fail to attend employer-sponsored meetings, or receiving communications designed to communicate the employer’s opinion about religious or political matters.
As previously reported, the California Chamber of Commerce, together with the California Restaurant Association and Western Growers Association, filed a lawsuit to prevent enforcement of SB 399, which was signed into law on September 27, 2024. The lawsuit alleged that SB 399 is employer viewpoint discrimination in violation of the First and Fourteenth Amendments to the U.S. Constitution and is preempted by federal law under the National Labor Relations Act (NLRA).
SB 399 took effect on January 1, 2025, just a day after the lawsuit was filed. Since that time, SB 399 allowed employees to decline:
- To attend employer-sponsored meetings; and
- To participate in, receive or listen to any employer communication relating to political or religious matters.
“Political matters” is broadly 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” is similarly broadly defined as “matters relating to religious affiliation and practice, and the decision to join or support any religious organization or association.”
Some minor exceptions exist for communications related to employee duties, or if the employer is a political or religious organization.
Infringement on Employers’ Speech Rights
By placing limits on an employer’s speech based on broad categories of “political” and “religious” matters, employers argued that SB 399 expressly chills the content of employers’ speech as it relates to these matters.
The State of California, defending SB 399, argued that the statute just restricts an employer’s ability to engage in conduct — such as taking an adverse employment action against an employee for refusing to listen to the employers’ viewpoint — and that it doesn’t prohibit employers from actually engaging in the speech.
The District Court agreed with employers that SB 399 improperly regulates speech and highlighted how a claim under SB 399 would work in practice. If an employee sues their employer for violating SB 399, the adjudicating body must evaluate the content of the employer’s speech to determine whether it was political or religious in nature as defined by SB 399. In other words, a claim under SB 399 invariably regulates speech while disguised as a restriction on conduct.
Because SB 399 is a regulation on speech, it triggers a review of whether the regulation violates the First and Fourteenth Amendments of the U.S. Constitution as a state regulation. Further, the speech regulations’ content necessitates strict scrutiny of the regulation because it involves political speech — a core of the First Amendment.
To highlight this, the District Court notes that SB 399 would permit an employer to fire an employee for failing to attend a mandatory meeting on charitable giving that doesn’t fall within the definitions of political or religious matters but prohibit an employer from firing an employee for failing to attend a mandatory meeting on a minimum wage initiative. Therefore, SB 399 holds different categories of speech to different limitations and is a regulation on speech that triggers strict scrutiny.
The District Court rejected California’s argument that SB 399 survives strict scrutiny because employees are “captive audiences” at the workplace and protecting captive audiences from unwanted speech is a compelling interest.
The District Court, in rejecting California’s argument, highlighted that the captive audience doctrine requires some level of expectation of privacy, and case law supporting this compelling interest has never been extended to workplace because of reduced expectation of privacy.
NLRA Preemption
Employers advanced a second argument against SB 399, claiming that the NLRA as a federal labor relations regulation prevents California from regulating in this area.
Enacted by Congress, the NLRA regulates the right of employees to organize and bargain collectively about working conditions. Section 7 of the NLRA protects employees’ rights to self-organize or join a labor organization, and to collectively bargain or otherwise engage in other concerted activities related to working conditions. Section 8 of the NLRA prohibits “unfair labor practices”. The National Labor Relations Board (NLRB) is responsible for adjudicating an “unfair labor practice” claims.
The U.S. Supreme Court, in what is known as Garmon preemption, has held that when conduct is subject to Sections 7 or 8 of the NLRA, the states, as well as federal courts, must defer to the exclusive jurisdiction of the NLRB. Employers in this case argue that SB 399 is preempted under Garmon because it interferes with employees’ ability to learn about the advantages or disadvantages of unionization, and it prohibits union-related messages during mandatory meetings in violation of Section 7 and 8 of the NLRA, respectively. The District Court agreed and held the portion of SB 399 related to meetings about whether to join a labor organization is preempted by the NLRA.
The District Court also explored a second preemption under the NLRA advanced by the U.S. Supreme Court known as the Machinists preemption. Here, the Supreme Court found that areas left unintentionally unregulated by the NLRA be allowed to be controlled by economic forces rather than state or local regulations.
The District Court determined that Congress left “non-coercive” speech related to joining a labor organization unregulated, and so state and local governments may not regulate that speech under the Machinist preemption. While SB 399 regulates coercive speech from a mandatory meeting perspective, it also goes further to regulate “any communications with the employer or its agents or representatives” where the purpose “is to communicate the employer’s opinion about religious or political matters.” So, SB 399 doesn’t limit penalties to just coercive speech; it also regulates speech that was designed by Congress to remain unregulated. For this reason, the court ruled SB 399 is also preempted by the NLRA.
As a result of the employers’ likelihood of success on the merits of both the free speech and NLRA preemption arguments, the District Court preliminarily ordered that California can’t enforce SB 399. This ruling is appealable, so employers should continue to monitor current events related to this litigation.
The National Labor Relations Board and Mandatory Meetings
While the preliminary injunction against SB 399 is a significant win for employer speech rights, other NLRB developments have muddied the waters. As previously reported, the NLRB overturned more than 75 years of precedent by holding that employers are prohibited from requiring employees to attend meetings discussing unionization.
So, while SB 399 is enjoined, employers should still be aware that mandatory meetings held by employers to discuss unionization are still prohibited under the NLRA.
Because this is a new NLRB standard, and the composition of the NLRB changes to reflect the current presidential administration’s priorities, it is possible future standard litigation can revert to the prior 75-year precedent allowing mandatory meetings. Employers facing current or prospective unionization efforts should stay tuned to HRWatchdog and keep in touch with legal counsel on current developments.
Matthew J. Roberts, Associate General Counsel, Labor and Employment
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