In this episode of The Workplace podcast, CalChamber Associate General Counsel Matthew Roberts, Senior Employment Law Counsel Erika Barbara and Employment Law Subject Matter Expert Vanessa Greene discuss SB 399 (Wahab; D-Hayward), which Governor Gavin Newsom signed into law last week. This new legislation, set to take effect on January 1, 2025, places restrictions on employer communications regarding political and religious matters.
This year’s legislative session has wrapped up, and thanks to the advocacy of CalChamber’s policy team, many bills that were harmful to the business community were stopped, Roberts says in kicking off the podcast.
One proposal that was passed was CalChamber “job killer” bill SB 399. This legislation limits an employer’s ability to hold mandatory meetings with its workers or send communications to workers if the subject matter of the meeting involves political or religious matters.
SB 399 Overview
Barbara explains that SB 399 prohibits all employers—regardless of size—from taking adverse actions against employees who choose not to engage in employer discussions or receive any communications about political or religious matters. This encompasses various repercussions, including termination or disciplinary actions, for employees who decline to attend employer-sponsored meetings or affirmatively declines to participate in, receive or listen to any communications from the employer, or the employer’s agents, about the employer’s opinion on either political or religious matters.
Importantly, the law includes a wage and hour requirement. If an employee is scheduled to work during a mandatory meeting and opts not to attend, the employer is still required to compensate them for that time.
“In addition to avoiding any adverse actions against an employee for declining to attend one of these meetings, the employer must also continue to pay the employee while the meeting is held,” she says.
Defining Political and Religious Matters
According to Barbara, “political matters” is broadly defined as any matter relating to elections for political office, political parties, legislation, regulations, and the decision to join or support any political party or political or labor organization. Employers risk litigation and penalties for even discussing something like a new law or local candidates running for office in a communication or during a meeting.
This particular provision also raises concerns for employers accustomed to discussing unionization and labor relations freely.
“…for decades, employers have been able to hold mandatory meetings with employees to discuss the employer’s opinion on unionization and labor organization, but this bill now undermines that long standing practice, so as a result, employers who are looking to discuss opinions on unionization efforts with employees should consult with legal counsel now to tailor any such messages to comply with the requirements of SB 399,” Barbara says.
“Religious matters” are similarly broadly defined, covering aspects of religious affiliation, practices, and the decision to join or support any religious organization.
Exemptions
While SB 399 applies broadly, Barbara noted a few narrow exemptions. Specific religious corporations and political organizations may be exempt if their communications align with their core beliefs and mission. Additionally, the law does not restrict employers from engaging in communications or training mandated by law or essential for job performance.
Implications for the Upcoming Election Cycle
SB 399 does not take effect until 2025. Therefore, existing laws govern employer communications during this 2024 election cycle
Greene explains that employers still have the right to communicate their company’s positions on state legislation, regulations, and ballot measures. This communication can occur through various channels, including internal mail, phone messages, bulletin boards, email and even regular mail, but caution is advised: employers must avoid political messaging in payroll envelopes.
“Paycheck stuffers are a no go,” Greene says.
Greene stresses that employers must navigate existing restrictions carefully. Employers cannot control, coerce, punish or reward employees based on their political beliefs or activities.
Additionally, some types of speech in the workplace are legally protected and can’t be prohibited. This includes things like collective organizing or discussions about employment conditions, voting for a particular candidate or supporting a particular law that the employee believes will help improve working conditions.
