State legislation that business groups say would blatantly and unconstitutionally attack employers' free speech rights, to make it even easier for labor unions to organize in California workplaces, appears to have stalled in the California State Assembly.
The legislation designated as Senate Bill 399 has already passed the California Senate. But it has been tabled for the remainder of the year in the Assembly.
Authored by state Sen. Aisha Wahab (D-Hayward), SB399 passed the state Senate on a vote of 26-7 on May 23 but seemed to bog down in the state Assembly amid criticism by business groups, including the California Chamber of Commerce. The measure is now designated a two-year bill, meaning it won’t be considered for the rest of 2023, but may be taken up again next year.
NFIB California Director John Kabateck said SB 399 would chill employers' free-speech rights in their own workplaces.
| Kabateck Strategies
Labor organizations such as the California Labor Federation support the bill.
Bbut an opposition letter drafted by the California Chamber and other groups argues SB399 is unconstitutional and in conflict with federal labor relations laws.
“SB 399’s overbroad provisions effectively prohibit any discussion of political matters in the workplace and are unnecessary in light of existing California and federal laws that protect employees from any coercion related to their political beliefs or activities outside the workplace,” the letter states. “Further, the bill both violates the First Amendment and is pre-empted by the National Labor Relations Act (NLRA).”
Paul Grossman, general counsel for the California Employment Law Council, called the bill a misguided attempt by labor unions to alter the current balance of employer and employee rights during union-organizing campaigns.
“What (SB 399) is really designed for is to help unions organize,” Grossman told the Northern California Record. “... It will not become law. Courts will intervene. There is no right for a local government entity – state or county – to attempt to regulate union-management relations involving interstate commerce.”
The opposition letter notes that the NLRB already prohibits business owners from acting in a coercive way toward workers, interfering with the exercise of their rights or promising workers benefits for voting in a certain way in union elections.
In addition, the bill, which is labeled as a “job-killer” by opponents, can negatively affect employers’ financial security, according to the letter. SB 399 creates an opportunity to sue businesses under the state’s Private Attorneys General Act (PAGA) if an employer errs in interpreting provisions of the measure – to the tune of $100 to $200 per worker per pay period, the opposition letter says.
“Because trial attorneys walk away as the winners under PAGA by taking at least one-third of the total settlement or court award while workers often get mere pennies, SB 399 creates an enticing new cause of action for lawyers to manipulate for financial gain,” the letter says.
John Kabateck, the state’s National Federation of Independent Business (NFIB) director, said the bill treats the First Amendment as a “plaything” for organized labor.
“Employees have the right to discuss minimum-wage bills, who they intend to vote for or whatever else they want to talk about, but under SB 399 employers would be prevented from commenting on such matters under potential threat of a lawsuit filed by a single employee on behalf of all employees,” Kabateck told the Record in an email. “This bill is about chilling the speech of employers in their own places of business.”
Similar laws have been passed four times in other states, including Oregon, with a mixed record of success, according to the opponents’ coalition letter.
“One was struck down, one was repealed because the state agreed that the provision was pre-empted by the NLRA, one lawsuit was dismissed solely based on a (legal) ripeness issue, and the fourth is presently in litigation,” the letter states.
Oregon’s law faced a legal challenge, but a court dismissed the case because the facts had not matured into a dispute requiring judicial intervention, according to opponents.
An analysis of the bill by the state Legislature expressed concern that SB 399 may be ambiguous about how it would apply to public-sector employers. Some public-employer associations have raised concerns that the bill could preclude necessary communications with workers.