Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—E.D. Cal.: California’s ‘captive audience’ meetings law preliminarily enjoined, (Oct 3, 2025)

By Nicholas Kaster, J.D.

The court did not find the desire to protect captive audiences in the employment context to be a compelling interest.

A federal district court in California preliminarily enjoined Senate Bill 399, a California state law banning employer “captive audience” meetings on political, religious, or union matters. The Chamber of Commerce and other employer groups sought to preliminarily enjoin the enforcement of SB 399 on the grounds that it is preempted by the NLRA and violates the Free Speech Clause of the First Amendment. The court agreed that SB 399 is preempted by the NLRA to the extent it purports to prohibit employers from requiring the presence of employees to communicate the employer’s message on unionization. Concerning the First Amendment challenge, the court held that SB 399 is a content-based regulation of speech that cannot withstand strict scrutiny (California Chamber of Commerce v. Bonta, No. 2:24-cv-03798-DJC (E.D. Cal. Sept. 30, 2025)).

SB 399. SB 399, which became effective January 1, 2025, was enacted in response to the legislature’s concern about “captive audience meetings” held by employers during which employers share their opinions on political or religious matters unrelated to the employees’ job duties. These meetings can be mandatory, and employees who do not attend risk adverse employment action. The legislature expressed serious concern about such retaliation and the potential for coercion given that employees may feel compelled to adopt their employer’s viewpoints on political and/or religious matters.

Broadly speaking, the law prohibits employers from subjecting employees to adverse action where the employee declines to attend a meeting where the employer communicates his or her opinion about religious or political matters, including discussions related to the decision whether or not to form or join a labor union.

The California Chamber of Commerce and other employer interest groups filed suit seeking to preliminary enjoin the enforcement of SB 399 on the grounds that it is preempted under the NLRA and violates the Free Speech Clause of the First Amendment. The groups contended that SB 399 unlawfully regulates noncoercive speech of employers through implementing a “sweeping” limitation on speaking to employees about religious and political matters. In particular, the groups were concerned about the inclusion of “the decision to join or support any...labor organization” within the list of topics included within the definition of “political matters.” The groups sought to preliminarily enjoin Robert Bonta, Lilia Garcia-Brower, and the Division of Labor Standards Enforcement of the California Department of Industrial Relations from enforcing SB 399.

NLRA preemption. The NLRA itself contains no express preemption provision. That said, the Supreme Court has recognized two forms of defensive, implicit preemption—known as Garmon preemption and Machinists preemption—to safeguard the implementation and substance of federal labor policy. The employer groups contended that both forms of preemption apply to SB 399 such that an injunction is proper.

Recognizing the danger of state interference arising from conflicting court and NLRB decisions, the Supreme Court has held that when an activity is arguably subject to section 7 or 8 of the NLRA, the states as well as the federal courts must defer to the exclusive competence of the NLRB (S.D. Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959). This form of preemption, referred to as Garmon preemption, may exist even where state law and the NLRA “only arguably conflict.”

The employer groups argued that SB 399 is preempted by the NLRA because SB 399’s proscription of union-related messages when conducted during a mandatory meeting directly conflicts with Section 8(c). They also argued that while the conduct here may be preempted by the NLRA, the responsibility for making that decision rests with the NLRB, not the state, such that Garmon preemption still exists. Lastly, they argued that SB 399 “stymies” employees’ ability to learn about the advantages and disadvantages of unionization, which interferes with Section 7 of the NLRA.

The state’s representatives argued that preemption was improper, based on two recognized exceptions to Garmon. First, they argued that the case does not involve a situation where a party could have raised a claim before the NLRB itself. Given the lack of opportunity or attempt to bring an identical claim before the Board such that it could exercise its primary jurisdiction, they maintained, Garmon preemption does not apply. Second, they argued that SB 399 involves “interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction,” the court cannot conclude that Congress deprived the states of the power to Act.

Under the first exception, where the party raising a preemption claim lacks a reasonable opportunity to secure a NLRB decision on the legal status of the conduct at issue, Garmon may not apply. This exception exists because concerns around protecting the Board’s primary jurisdiction are inapplicable when the aggrieved party may not bring a charge to the NLRB, nor induce his opponent to do so. However, the “reasonable opportunity” exception appears to be concerned with conduct that has an unknown legal status.

This case does not present those same concerns, said the court. First, it has been established that issues of employer speech are subject to the NLRB’s jurisdiction. Second, prior case law confirms that the conduct here may be prohibited by the NLRB such that the Board’s jurisdiction should be protected. Thus, the court found that this exception did not apply.

Under the “local feeling” exception, Garmon preemption is inapplicable when the conduct at issue touches on interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, the court could not infer that Congress had deprived states of the power to act. Here, the state’s representatives argued that California sought to protect individual autonomy particularly when it comes to expression related to core political and religious values in a setting with a power imbalance, that is, the workplace. However, the fact that this law expressly targets communications related to the decision to join a union renders the deeply held feelings exception inapplicable, the court stated. Significantly, said the court, they could not point to any California laws protecting other populations from captive meetings, nor was this an area where states have a long tradition of regulating behavior. Thus, the court found that the deeply local exception did not apply. Accordingly, the court held that SB 399 is preempted under Garmon to the extent that it expressly covers meetings relates to whether or not to join a labor organization.

Machinists preemption. The second form of preemption, known as the Machinists preemption, was established by the Supreme Court to ensure that areas left intentionally unregulated by the NLRA remain “controlled by the free play of economic forces” (Chamber of Com. of U.S. v. Brown, 554 U.S. 60 (2008). Under Machinists preemption, states and municipalities are prohibited from imposing restrictions on economic weapons of self-help, unless such restrictions were contemplated by Congress.

The employer groups argued that Machinists preemption applies because SB 399 limits free debate on labor issues. Further, by limiting employers’ speech, they contended that the state legislature “put its thumb on the scale in favor of unionization.” The state’s representatives argued that SB 399 is not preempted because it is a minimum labor standard and is not a regulation of noncoercive speech, but rather of employers’ conduct.

However, the court was not convinced that SB 399 is limited to just employer conduct. An individual seeking to enforce SB 399 following an adverse employment action would have to point to an employer’s speech related to whether or not to join a labor organization in determining whether such adverse action was appropriate.

The state’s representatives argued that employers are not restricted from sharing their views and instead are only prevented from taking adverse action against those employees who do not wish to listen. Mandatory meetings infringing on employee Section 7 rights are considered coercive and the court agreed that coercive speech is not protected by the NLRA.

However, said the court, SB 399 also creeps into the realm of regulating noncoercive speech because it does not distinguish between the two. The legislative history of SB 399 shows that the primary concerns underlying SB 399 are captive audience meetings. However, SB 399 expands beyond those circumstances and applies to “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.”

By not limiting penalties to coercive speech, said the court, SB 399 risks interfering with employers’ statutory and First Amendment rights to express their opinions on whether or not to join a labor organization, or from otherwise engaging in noncoercive speech. SB 399 ultimately risks chilling one side of the debate between labor and management, and thus infringes on noncoercive employer speech.

The state’s representatives also argued that SB 399 is a minimum labor standard, such that the Machinists preemption does not apply. However, given the impact it is likely to have on debates regarding unionization, and particularly the strain on employers’ noncoercive speech, the court found that it was not a minimum labor standard.

Thus, the court concluded that it was likely that both Garmon and Machinists preemption applied, and that the employer groups established a likelihood of success on their arguments that SB 399 is preempted by the NLRA.

First Amendment challenge. The employer groups also brought a facial challenge to SB 399 on First Amendment grounds, arguing that the statute is a content and viewpoint-based restriction on employer speech. The state’s representatives contended that SB 399 is a classic regulation of conduct, akin to antidiscrimination laws and whistleblower protection laws.

The stated purpose of the statute is to protect employees who were forced to attend “captive audience” meetings and subjected to adverse employment action where they declined participation. SB 399 does not facially prohibit employers from expressing their religious or political views. Rather, it prohibits certain measures, specifically, taking adverse employment action against an employee who does not wish to hear the employer’s communications.

However, SB 399’s prohibition applies where an employee: (1) declined to attend a meeting or receive or listen to a communication, (2) the purpose of which was to communicate the employer’s opinion, (3) about religious or political matters. Thus, said the court, SB 399 has the inevitable effect of being directed toward employers who chose to engage in core expressive activity—sharing their opinions on religious and political matters. Accordingly, the court rejected the argument that SB 399 regulates conduct alone. SB 399 involves political and religious speech, the court said. Political speech, in particular, is at the core of the First Amendment.

Enforcing SB 399 would require referencing the content of the employer’s speech in determining whether the adverse employment action was proper. For example, if an employer required employees to attend a mandatory meeting to discuss charitable giving, the employer could fire an employee for not attending, but could not take such action if the meeting were about a measure to increase the minimum wage. That is to say, the subject matter of the speech dictates whether the law applies. The court thus concluded that SB 399 is a subject-matter based restriction on speech.

The state’s representatives alternatively contended that the First Amendment does not encompass a right to force a listener to hear one’s speech. They argued that California may protect vulnerable employees who would be forced by their employers, under the threat of losing their jobs or suffering adverse employment action, from listening to their employer’s religious or political opinions. The court was not persuaded. Noting that no court has expanded the captive audience line of cases to the employment context, the court found that the captive audience doctrine did not apply to SB 399. Accordingly, the court applied strict scrutiny to SB 399.

To survive strict scrutiny, a state must show that the statute “furthers a compelling governmental interest and is narrowly tailored to that interest.” Here, the court did not find the desire to protect captive audiences in the employment context to constitute a compelling interest. And to the extent that the parties compare this law to civil rights legislation, the interest in protecting a captive audience is unlike the recognized compelling interest in protecting groups that have historically been subjected to discrimination. And even if a compelling interest had been established, the court did not find that SB 399 was narrowly tailored to serve that compelling interest.

The state’s representatives argued that SB 399 would only reach discussions forced onto unwilling employees. But the court was not convinced that the scope of SB 399 was that limited. To the extent that the legislature is concerned about captive audience meetings, SB 399 expands beyond that situation—covering meetings along with “any communications with the employer or its agents or representatives....” Thus, said the court, SB 399 applies to communications that do not involve meetings at all.

This expansive reach creates a stronger likelihood of chilling speech, as employers who seek to avoid litigation may also refrain from using methods other than meetings to share their views. Moreover, said the court, it is not apparent that the legislature’s concerns surrounding the captivity or coercion present in the meeting context exists in the context of receiving a newsletter or walking by a flyer in the workplace hallway. Accordingly, the court found that SB 399 was not “narrowly tailored.”

The court therefore concluded that the employer groups have shown a likelihood of success on the merits on their First Amendment argument.

Accordingly, the court granted their motion for preliminary injunction.

The case is No. 2:24-cv-03798-DJC.

Judge: Calabretta, D.

Attorneys: Lonnie D. Giamela (Fisher & Phillips) for California Chamber of Commerce, California Restaurant Association, and Western Growers Association. Kristin A. Liska, Office of the Attorney General, for Robert Bonta and Lilia Garcia-Brower.

Companies: California Chamber of Commerce; California Restaurant Association; Western Growers Association

Cases: Procedure RemediesDamages Labor UnionsMembers StateLegislation CaliforniaNews