For many decades, California employers have relied on mandatory employee meetings—commonly referred to as "captive audience meetings"—to communicate their views during union organizing campaigns. That long-standing practice was upended in late 2024 when the National Labor Relations Board ("NLRB") held, in a case involving Amazon, that mandatory meetings concerning unionization generally violate the National Labor Relations Act ("NLRA”).
At nearly the same time, California enacted Senate Bill 399 ("SB 399"), which broadly prohibits employers from disciplining employees who refuse to attend mandatory meetings concerning political or religious matters, including discussions about labor organizations.
Today, however, the legal landscape covering captive audience meetings in California is anything but settled. Although both the NLRB and California have sought to restrict captive audience meetings, recent legal developments have left employers in a period of significant uncertainty.
The NLRB's Ban on Captive Audience Meetings
On November 13, 2024, the Biden NLRB issued its decision in Amazon.com Services LLC, 373 NLRB 136 (2024) overruling more than 75 years of Board precedent that had permitted employers to require employees to attend meetings concerning union organizing, provided the employer did not engage in threats, promises, or other unlawful conduct.
The Board concluded that requiring employees to attend employer-sponsored meetings concerning unionization unlawfully coerces employees in the exercise of their rights under Section 7 of the NLRA. Under the Board's new standard, employers generally may not require employees to attend such meetings, unless attendance is truly voluntary.
Although the decision remains Board precedent, its future is uncertain. The decision is currently under review in the Eleventh Circuit. In addition, the Trump Board's current composition is more employer-friendly than the Board that issued the decision. A third Republican NLRB Member is now being reviewed by Congress. Once the Board has a functioning three-person majority, it will likely revisit and potentially overrule many Biden Board-era decisions that set pro-union precedent. It is unclear whether the Amazon decision will be one of those cases.
California's SB 399 and other State Restrictions
Adding another layer of complexity, California enacted SB 399, effective January 1, 2025. Codified primarily by Labor Code section 1137, the statute prohibits employers from taking adverse action against employees who decline to attend employer-sponsored meetings or receive employer communications regarding religious or political matters. The statute defines "political matters" broadly enough to include communications regarding labor organizations and union organizing. A comprehensive look at that statute is available here.
Thirteen states currently have some type of legislation banning or restricting captive audience meetings (Alaska, California, Connecticut, Hawaii, Illinois, Maine, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington). In addition, several states have recently introduced or have legislation pending to regulate captive audience meetings. (Maryland, Massachusetts and Virginia). Governor Jared Polis vetoed Colorado’s captive audience bill in 2024.
Unlike the NLRB's decision, California’s SB 399 is not limited to union campaigns. It also reaches mandatory meetings concerning broader political and religious topics. The law further provides employees with a private right of action, exposing employers to potential litigation in addition to administrative enforcement.
California Chamber of Commerce v. Bonta
Before SB 399 could meaningfully be enforced, several business organizations challenged the statute in federal court. The California Chamber of Commerce led the charge here.
In California Chamber of Commerce v. Bonta, filed in Sacramento, the plaintiffs argued that SB 399 is preempted by the NLRA under the doctrine established in San Diego Building Trades Council v. Garmon and impermissibly regulates employer speech in violation of the First Amendment.
In Cal Chamber, the Federal District Court for the Eastern District of California agreed that the plaintiffs were likely to succeed on their claims and issued a preliminary injunction prohibiting enforcement of SB 399 while the litigation proceeds. We reported on this decision last October, when it was issued.
The federal district court concluded that the statute likely intrudes into an area occupied by federal labor law and raises substantial constitutional concerns because it regulates speech based upon its content. As a result of this decision, SB 399 is presently enjoined and cannot currently be enforced against California employers.
However, the Cal Chamber decision was appealed to the Ninth Circuit. On appeal, the California Labor Commissioner and California Attorney General are asking the Court of Appeals to reverse the preliminary injunction blocking enforcement of the law. Oral arguments were held yesterday. The deputy attorney general, arguing for the state, claimed that that the law regulates conduct, not speech, and therefore is not constitutionally problematic. The case is before a three-judge panel: Judge Mark Jeremy Bennett (a Trump appointee), Judge Richard C. Tallman (a Clinton appointee), and Judge Richard A. Paez (also a Clinton appointee). A decision is likely to be issued before the end of the calendar year.
The Current Status
As of today, California employers find themselves in an unusual and challenging position:
- The NLRB's Amazon decision technically remains Board precedent restricting mandatory anti-union meetings, but its long-term viability is uncertain given the changes and anticipated future changes in Board leadership and ongoing appellate review.
- California's statutory ban under SB 399 remains blocked by the Eastern District’s preliminary injunction while California Chamber of Commerce v. Bonta proceeds through the Ninth Circuit. Yesterday’s oral argument suggests that Judge Tallman and Judge Bennett are skeptical of the statute's constitutionality and its consistency with federal labor law, although no decision will be issued for months.
Practical Guidance for California Employers
Given the unsettled state of the law, California employers should proceed cautiously before conducting mandatory meetings regarding union organizing.
Although SB 399 is currently unenforceable, employers remain subject to the NLRB's current interpretation of the NLRA until that decision is reversed by either the courts or a reconstituted Board. At the same time, because both the Board's decision and California's statute remain under active legal challenge, California employers should closely monitor developments before adopting their communication strategies during organizing campaigns.
California employers considering mandatory meetings during a union campaign may want to consider whether a non-mandatory meeting will be equally or almost as effective. In any case, California employers who find themselves having to determine how to communicate their union views to employees should always consult experienced California labor counsel to evaluate current legal risks and develop communication strategies that remain effective while minimizing potential exposure.
The federal and state laws governing captive audience meetings will continue to evolve rapidly. We will continue to keep you updated. Stay tuned.
