Legislative Update: Injunction placed on last year’s California Worker Freedom from Employer Intimidation Act (SB 399)
Injunction placed on last year’s California Worker Freedom from Employer Intimidation Act (SB 399)
As we reported last year, California Governor Gavin Newsom signed Senate Bill 399, also known as the California Worker Freedom from Employer Intimidation Act, which prohibits an employer from subjecting, or threatening to subject, an employee to discharge, discrimination, retaliation 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 (including union discussions).
This new law did not go over well with the business sector in the state. Now, a year and a lawsuit later, where are we? Let’s take a look.
The Lawsuit
Plaintiffs, the California Restaurant Association, the California Chamber of Commerce and other business groups, including the Western Growers Association, filed suit soon after the legislation was enacted, claiming that (1) SB 399 violates the First and Fourteenth Amendments to the United States 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 and (2) SB 399 is also preempted by the National Labor Relations Act.
Businesses like Western Growers argued that the new law slanted workplace speech and unfairly weighed on family farmers and other employers.
The District Court’s Preliminary Injunction
In finding for the plaintiffs and granting the requested injunction, the United States District Court for the Eastern District held:
· Concerning the First Amendment challenge, the Court rejected that SB 399 simply regulates conduct, since what conduct is prohibited turned solely on the subject being discussed at a required meeting. Although the Court recognized the State’s interests in protecting employees in these circumstances, the Court concluded SB 399 is a content-based regulation of speech that cannot withstand strict scrutiny.
· With respect to preemption, the Court agreed that SB 399 is preempted by the National Labor Relations Act to the extent it purported to prohibit employers from requiring the presence of employees to communicate the employer’s message on unionization. The Court found the result to be 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.
What Now?
SB 399 will continue to be on hold until litigation finishes. A permanent injunction could be the ultimate end result depending on how the case plays out.
This outcome looks to be a win for employers in California. Dave Puglia, President and CEO of Western Growers, stated:
This decision affirms what we have said from the beginning: SB 399 tramples on federal labor law and the First Amendment. By enjoining this unconstitutional law, the court has preserved the right of agricultural and all California employers to communicate openly with their employees without the State tipping the scales in union organizing campaigns. We are proud to stand with our coalition partners in defending these fundamental rights.
The state could appeal the district court’s decision, but until then, employers may hold discussions openly with employees with the protections of federal law behind them. RLG congratulates Western Growers on a job well done.
This is a good time to remind employers to get those employee handbooks updated for 2026! Please contact Rosasco Law Group for information on this or any other employment law that needs to be addressed in your handbook.
