California Joins Growing List of States Prohibiting Employer Action Against Employees Who Refuse Political or Religious Communications

California Joins Growing List of States Prohibiting Employer Action Against Employees Who Refuse Political or Religious Communications

September 30, 2024, Covington Alert

On Friday, California Governor Gavin Newsom signed SB 399, the “California Worker Freedom from Employer Intimidation Act” (the “Act”) that should be of interest to any company with employees in the state. The Act, which takes effect on January 1, 2025, adds a new section to the California Labor Code to prohibit employers from taking or threatening adverse employment action against an employee because the employee refuses to attend employer meetings about, or to participate in, receive, or listen to, any communications about the employer’s opinion on religious or political matters. The law is similar to, but broader than, laws in several other states that attempt to decrease the influence of “captive audience” meetings communicating an employer’s political or religious opinions.

Captive audience laws are frequently promoted by labor organizations that aim to limit employer communications related to unionization. However, the new California law is broader and applies to meetings and communications related to employers’ opinions on “political matters” or “religious matters,” both of which are defined terms in the Act.

“Political matters” are “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.” While the state will likely sharpen the contours of the law through regulation, as drafted this includes not only electoral and partisan political matters, but also issue-based activity, such as meetings about an employer’s position on proposed regulations or efforts to “activate” employees on a grassroots level to contact legislators about pending legislation. The definition of “political matters” also would cover union organizing.

“Religious matters” are “matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.”

The Act does not entirely prevent employers from holding meetings or communicating with employees on political or religious matters. Instead, the Act would prohibit employers from requiring employees to participate in events or participate in, listen to, or receive communications the purpose of which is to communicate the employer’s opinions on political or religious matters. It would prevent employers from taking adverse actions against employees who refuse to attend, and require employers to continue to pay employees who are working during such a meeting and refuse to attend. The Act makes clear, however, that it does not restrict an employer from communicating any information that it is required by law to communicate or that is necessary for employees to perform their job duties. Also, the Act does not apply to mandatory workplace training programs regarding harassment prevention or health and safety matters.

The Act contains numerous exceptions, most notably for certain communications from religious and political organizations to their employees related to the employer’s religious or political purposes. It also contains carveouts for educational institutions requiring students and instructors to attend lectures as part of the institution’s regular coursework, and for nonprofit training programs requiring students or instructors to attend classes or perform work related to the program’s mission, among others. On its face, the law applies to employers of any size.

The Act provides California’s Labor Commissioner with enforcement authority, and, alternatively, provides affected employees a cause of action against their employer that includes punitive damages. Employers who violate the law would also be subject to a $500 civil penalty per employee for each violation, in addition to any other remedy.

California Labor Code §§ 1101-1102 already prohibit employers from (1) preventing their employees from engaging in politics or becoming candidates for public office; (2) controlling or directing employees’ political activities and affiliations; and (3) coercing or influencing employees’ political activities by threatening the loss of employment.

In passing SB 399, California joins a growing list of states—including Illinois, Maine, Minnesota, and New York—that have recently adopted similar prohibitions related to employers’ communications with employees about religious and political matters.

If you have any questions concerning the material discussed in this client alert, please contact the members of our Election and Political Law and Employment practices.