California cannot prohibit employers from speaking to employees about the negative consequences of Unions. On October 29, 2026, the United States Court of Appeals for the Ninth Circuit affirmed a preliminary injunction that prevents California from enforcing Senate Bill (SB) 399, the California Worker Freedom from Employer Intimidation Act, commonly referred to as the “captive audience” law. In California Chamber of Commerce v. Bonta, the court held that the business groups challenging the law are likely to succeed on their claim that SB 399 violates employers’ free speech rights under the First Amendment. As a result, the State may not enforce SB 399 while the litigation continues. The decision is a significant victory for California employers, particularly those that communicate with employees about legislation, elections, or unionization. However, the ruling is not a final judgment on the law’s validity and federal labor law continues to regulate mandatory meetings about unionization, so employers should continue to proceed with care.
What Is SB 399?
SB 399 was enacted in 2024 and took effect on January 1, 2025. Subject to certain exceptions, SB 399 attempted to prohibit an employer from subjecting, or threatening to subject, an employee to discharge, discrimination, retaliation, or any other adverse action because the employee declines to attend an employer-sponsored meeting, or declines to participate in, receive, or listen to communications from the employer, “the purpose of which is to communicate the employer’s opinion about religious or political matters,” including, “the decision to join or support any . . . labor organization.”
SB 399 authorizes the Labor Commissioner to investigate alleged violations, order temporary relief, issue citations, and file civil actions. Employers that violate the law face a civil penalty of $500 per employee per violation. The law also gives employees a private right of action, through which an employer may face injunctive relief and damages, including punitive damages, in addition to the civil penalty.
The Challenge to SB 399
Three industry groups representing more than 13,000 California employers (the California Chamber of Commerce, the California Restaurant Association, and the Western Growers Association) sued California. The groups argued that SB 399 violates the First Amendment and is preempted by the National Labor Relations Act (“NLRA”). The United States District Court for the Eastern District of California agreed on both points and preliminarily enjoined the State from enforcing the law. California appealed.
The Ninth Circuit’s Decision
The Ninth Circuit affirmed the injunction, holding that the industry groups are likely to succeed on their First Amendment claim. The court did not decide whether SB 399 is also preempted by the NLRA. The court rejected California’s argument that SB 399 regulates only conduct, not speech. Because SB 399 prohibits adverse action only when the purpose of the meeting is for the employer to communicate its opinion, the law necessarily targets employers based on their expressive activity, and the First Amendment therefore applies.
What This Means for Union-Related Communications
While the injunction remains in place, the State may not enforce SB 399 against employers who hold meetings to share their views on unionization. However, employers should not view the decision as a green light to require attendance at union-related meetings. The Ninth Circuit’s ruling addresses only California’s SB 399. Employers covered by the National Labor Relations Act (most private employers) remain subject to federal labor law, which the Ninth Circuit’s decision does not change. In Amazon.com Services LLC, 373 NLRB No. 136, 2024 WL 4774441 (2024), the Biden-appointed National Labor Relations Board (“NLRB”) held that employers violate the NLRA by compelling employees to attend “mandatory” meetings at which the employer expresses its views on unionization. It is likely that the Trump-appointed NLRB will reverse this decision, but employers may wish to make these meetings voluntary instead of mandatory.
Contact Hill Farrer for Further Information
Please contact your Hill Farrer attorney or any member of our Labor and Employment department at (213) 620-0460 with any questions about SB 399, the Ninth Circuit’s decision, or how to lawfully communicate with employees about political matters and unionization.
