CalChamber Sues to Block Forced Meeting Law

California Chamber of Commerce v. Bonta advances familiar free speech arguments under the First and Fourteenth Amendments to the U.S. Constitution and a preemption claim under the National Labor Relations Act (NLRA).

Fallout from Amazon’s drive to block unionization

SB 399 draws heavily on the experience of Amazon employees who were forced to attend anti-union meetings at a Staten Island, N.Y. facility in advance of a 2022 union certification election. In Amazon.com Services LLC and Dana Joann Miller and Amazon Labor Union the National Labor Relations Board (NLRB) found that Amazon’s threat to withhold benefits from workers who refused to attend the meetings violated the NLRA and ordered Amazon to cease and desist in such efforts. Amazon has reportedly said that it plans to appeal the NLRB’s decision.

Ten other states, including Alaska, Hawaii, New Jersey, New York, Oregon, Vermont and Washington have adopted laws similar to SB 399. Business groups successfully challenged the Wisconsin law in 2010, but similar challenges to Oregon’s law failed.

Provisions of SB 399

SB 399 amends the California Labor Code to prohibit employers from subjecting, or threatening to subject, an employee with:
“discharge, discrimination, retaliation, or any other adverse action 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.”

Crucially, an employee who is working at the time of the meeting and chooses not to attend must continue to be paid while the meeting is held. These meetings are commonly called “captive audience meetings.” Employers are subject to a civil penalty of $500 per employee per violation.

The law does not bar an employer from:

• communicating to its employees any information that it is required by law to communicate, but only to the extent of that legal requirement; or
• communicating to its employees any information that is necessary for those employees to perform their job duties.

In addition, an institution of higher education may require attendance at a meeting or participation in any coursework, symposia, or academic programs. A public employer may similarly require attendance at meetings intended to communicate information related to a policy of the employer or any law or regulation that it is responsible for administering.

Some entities like religious organizations, political parties, and certain non-profit organizations are excluded from coverage of the law.

California Chamber of Commerce v. Bonta

The California Chamber of Commerce argues that SB 399 infringes on employers’ free speech rights. Further, it argues that much of the law’s substance is already covered by the federal NLRA.

Free speech

The Chamber maintains that SB 399 violates employers’ First Amendment rights to free speech under the First and Fourteenth Amendments. It contends that the law restricts employers’ ability to communicate with employees about important workplace issues, including unionization.

Supporters of SB 399 argue that the law does not restrict speech and other forms of information sharing. It prohibits the denial of hourly pay for workers at work and other forms of retaliation. Supreme Court rulings since Citizens United v. FEC have expanded the definition of Constitutionally protected speech to include corporate financial transactions. It is not clear, however, that this would extend to the refusal to pay workers for declining to attend religious or political meetings.

Preemption

Sections 7 and 8 of the NLRA protect the right of employees to unionize, to join together to advance their interests as employees or to refrain from such activity. It is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights. For example, employers may not respond to a union organizing drive by threatening, interrogating, or spying on pro-union employees, or by promising benefits if they decide against unionizing.

Section 8(a)(1) of the law makes it an unfair labor practice for an employer to threaten employees with adverse consequences (including being paid for hours worked) if they engage in protected activity (such as refusing to attend an anti-union meeting).
The point argued by the Chamber is that, under the Supremacy Clause of Article VI, Paragraph 2 of the Constitution, federal law pre-empts state law when the two cover the same situation. Duplication creates confusion so, the Chamber argues, SB 399 has got to go.

Of the two arguments, this might be the stronger were it not for SB 399’s inclusion of other religious and political topics.