Chamber of Commerce, Restaurant Association claim the law, which labor unions say is meant to prevent coercion, violates free speech.

By Mark Kreidler, Capital & Main

This story is produced by the award-winning journalism nonprofit Capital & Main and co-published here with permission.

On the last day of 2024, business groups sued the state of California to prevent the implementation of a new law.

The groups hated the law from its inception. They signaled all along that if it were enacted, they’d head straight to court to try to stop it.

Why? Because the law forbids them from an age-old practice of mandating their workers to sit through meetings to hear their company’s opinions on, among other things, why their workers should not join a union.

If that practice — known colloquially as captive-audience meetings — sounds twisted, that’s because it is. Forcing workers into meetings where they’re told their bosses don’t want them to unionize smacks of coercion. Yet for decades employers across the U.S. have been allowed to require attendance at such meetings during normal work shifts, despite federal labor rules that say workers should be free to choose on their own whether to form or join a union.

The California law, which took effect Jan. 1, prohibits such mandatory attendance, which explains the quick lawsuit attempting to overturn it. In their suit, the business groups claim that the law violates employers’ free speech rights.

But this isn’t just a California conversation. It’s part of a growing national debate over how much employers should be allowed to leverage their power over workers.

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Senate Bill 399 is a remarkably straightforward piece of legislation. It says that employers can’t force workers to attend captive-audience meetings at which the employers opine on religious or political matters, including views on joining or supporting “any political party or political or labor organization.” The employers are also forbidden from threatening or retaliating against a worker who decides not to go.

The background for the law is equally clear: Such meetings have long been used by employers to discourage workers from unionizing. According to research cited by the Washington, D.C.-based Economic Policy Institute, nearly 90% of all employers have used captive-audience meetings — often run by consulting groups — in response to unionization efforts.

“It’s highly typical — part of most any anti-union employer’s playbook,” said Jennifer Sherer, co-author of a detailed study on the practice for the institute. “In some cases, employers are engaging anti-union consultants and really heavily inflicting fear and intimidation, and sometimes crossing the line and illegally disciplining or firing people for union organizing activity.”

The policy center estimates that U.S. employers spend more than $430 million a year on “union avoidance” consultants for such purposes. And, Sherer added, their tactics tend to work. Forcing workers, many of them lower-income earners who fear losing their jobs, to attend anti-union meetings reinforces the employer’s power and ability to drastically affect a worker’s everyday life — a strong incentive not to rock the boat.

A November ruling by the National Labor Relations Board declared that forcing workers to go to these meetings is unlawful and violates the intent of the National Labor Relations Act, the first such ruling in more than 70 years. But the NLRB’s decision is narrowly confined to the area of union organizing — and it may also be overturned once the Trump administration is in place and, presumably, new appointees to the board are made.

That’s why the state law, written by state Sen. Aisha Wahab (D-Hayward), is so critical. Not only does it have the power to protect California workers regardless of a change in National Labor Relations Board leadership, but it more sweepingly includes “religious or political matters” — which could cover a whole host of sins.

“Because the state law is addressing the broader question of use of employer coercion, it’s really important,” Sherer said. “It isn’t just captive-audience meetings during a unionization campaign, but the increasingly documented use of the workplace by some employers as a mechanism for furthering their own political agenda or political views — an equally problematic trend.”

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Business groups don’t see it that way. In their lawsuit, the California Chamber of Commerce and the California Restaurant Association contend that SB 399 violates the First and Fourteenth amendments to the U.S. Constitution by “discriminating against employers’ viewpoints on political matters, regulating the content of employers’ communications with their employees, and by chilling and prohibiting employer speech.”

The chamber, which represents more than 13,000 California businesses large and small, fought the bill at every step. “Throughout legislative deliberations, we repeatedly underscored the fact that SB 399 was a huge overreach,” CalChamber President and CEO Jennifer Barrera said in an announcement of the lawsuit. “SB 399 is clearly viewpoint-based discrimination, which runs afoul of the First Amendment.”

The courts will ultimately decide that. But it’s worth noting that the new California law in no way prohibits employers from speaking their minds about any topics they wish to address, including religion, politics and whether their workers should join a union. It simply says the employers can’t force their workers to listen.

California wasn’t the first to adopt such a law; 11 other states have done so, and six more have proposals in the works. Sherer said in the cases she’s studied, the laws have been carefully worded so as not to infringe on free-speech rights, as is SB 399.

For now, workers in certain situations may be able to take the monkey of anti-union intimidation off their backs.

“It doesn’t matter if your employer’s politics are to the left or right of you, whether their religious beliefs align with yours or not — you shouldn’t be retaliated against for refusing to sit captive in indoctrination meetings that have nothing to do with your work,” said Lorena Gonzalez, president of the California Federation of Labor Unions. “That’s SB 399.”

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