Lesson Last Updated: October 14, 2024

Lesson Highlights

California just passed a new law–notably referred to as the “California Worker Freedom from Employer Intimidation Act”–which bans employers from holding “captive audience” meetings. We anticipate the shouts of “but what about free speech?!” ringing throughout the state on January 1. 

In this lesson, we'll cover the following topics:

• Description of what the law prohibits;
• A reminder of what the First Amendment actually does (and does not) protect; and
• A reminder that managers are considered agents of the employer.

And don’t forget to read the yellow highlighted areas carefully! Those are our recommended next steps for compliance. 

What Does This Law Prohibit?

This law, which goes into effect on January 1, 2025, prohibits employer-sponsored mandatory meetings that discuss religious or political matters, including union-representation discussions. If any such meeting occurs and the employer requires employee attendance at such meetings under threat of discharge, discipline, retaliation, or some other adverse employment action, then that meeting violates this law. Violations of this law may lead to a civil penalty of $500 per employee for each violation.

For the purposes of this law, “religious matters” means “matters relating to religious affiliation and practice and the decision to join or support any religious organization or association” and “political matters” means “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.” [1] 

Unfortunately, the law does not define what an “employer-sponsored meeting" is, which will likely lead to some litigation in the future. For example, if two co-workers are discussing politics with each other during a company-paid lunch outing, would that be considered an “employer-sponsored meeting”? It’s unclear, but our guess is the answer is probably no. Our best educated guess is that this will be construed to mean formal meetings that employees are instructed to attend by management level employees or owners; we do not believe that casual discussions between employees will be construed as a violation under this law. California may look to states like Connecticut, Maine, Minnesota, New York, and Oregon, all of which already have similar “captive audience” meeting bans on their books, in determining the limits of this law. 

If religious or political discussions routinely take place in your workplace, it’s recommended that you (1) underscore that all such discussions are entirely voluntary and employees will not face adverse action for declining to participate; and (2) consider consulting with an attorney to determine if you can/should restrict political speech or religious proselytizing in the workplace. Remember that political affiliation is not a protected characteristic, and excessive proselytizing in the workplace could be construed as actionable harassment, so there is some ability to impose limits on employees within the workplace.

What About the First Amendment?

We’re going to be fairly reductive here, for the sake of length, but essentially, the First Amendment protects the right to freedom of speech (among other things) and to be free from censorship by the government. So the question that naturally arises is, “doesn’t this law essentially result in censorship by the government?” 

Here’s the thing: this law doesn’t say employers can’t speak about religion or politics in the workplace whatsoever, it just says they can’t force their employees to listen. So no, it’s not considered censorship by the government. 

That doesn’t mean that implementing this law will be smooth sailing. Most of the states mentioned above that preceded California in their captive audience meeting ban have faced legal pushback. Most often, the argument has been that these laws are preempted by the National Labor Relations Act (“NLRA”). 

When a law is “preempted,” it just means that if higher levels of government attempt to regulate something that a state is also attempting to regulate, the higher level may limit or eliminate the authority of a lower level to regulate that issue. In other words, sometimes federal laws knock out state laws. 

The NLRA, which is a federal law, 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. Remember that this new law also prohibits captive audience meetings relating to union representation, which is the same general topic that the NLRA revolves around. Because employer interference with union organizing activity is already prohibited under the NLRA (and even other California law), there may be a preemption issue here. Only time will tell, but for now, employers should assume that this law takes effect on January 1, 2025 and will remain in effect indefinitely.

Managers are “Employers” Too

Keep in mind that “employer” is defined as “any individual, partnership, association, corporation, or any agent, representative, designee, or person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent….”[1], which means that the actions of a manager may be imputed to the employer, if the manager is acting with the employer’s consent. Again, this is broadly defined and consent may not always be given verbally. In many employment contexts, consent by the employer is often considered “implied” when an employer is aware of a manager’s behavior and doesn’t intervene. All employers should train their managers about this new law. It may also be appropriate to require your managers to receive additional training about conducting meetings in light of this new law. 

Each workplace is different, and the considerations for each vary widely depending on the nature of the work being performed. This is an area ripe for litigation and it’s highly recommended that you work with an attorney to understand how it applies to your workplace, especially if you are risk averse. 

This Lesson's Sources:

[1] SB 399