California "Captive Audience" Meeting Ban Remains Enjoined

California employers should have greater confidence in communicating with employees despite the state's statutory ban on "captive audience" meetings. That is because the U.S. Court of Appeals for the Ninth Circuit affirmed a preliminary injunction against enforcement of the California law, SB 399, concluding that the law likely infringes employers' free-speech rights. Employers in Alaska, Hawaii, Oregon, and Washington should also monitor potential challenges to similar statutes in those states, as the Ninth Circuit's decision should have implications beyond California.

With the enactment of SB 399, California joined a growing number of states that ban employer-sponsored "captive audience" meetings. Effective January 1, 2025, SB 399, the California Worker Freedom from Employer Intimidation Act, prohibited California employers from requiring employees to attend meetings concerning religious or political matters, including unionization. SB 399 also prohibited employers from retaliating against employees who refused to attend such meetings. Employers that violated the law would be subject to a civil penalty of $500 per employee.[1]

In California Chamber of Commerce v. Bonta, 802 F. Supp. 3d 1277 (E.D. Cal. 2025), the U.S. District Court for the Eastern District of California considered a challenge brought by the California Chamber of Commerce, the California Restaurant Association, and the Western Growers Association (collectively, the Associations). The Associations sought to preliminarily enjoin enforcement of SB 399 on the grounds that the statute was preempted by the National Labor Relations Act (NLRA) and violated the Free Speech Clause of the First Amendment. The Associations argued that SB 399 would chill employer speech, thereby distorting communications between employers and employees. They also contended that SB 399 constituted a viewpoint- and content-based regulation that could not withstand strict scrutiny. The District Court agreed and preliminarily enjoined California from enforcing SB 399. California filed an interlocutory appeal, and, on October 29, 2026, the U.S. Court of Appeals for the Ninth Circuit affirmed the preliminary injunction.

NLRA Preemption

The NLRA provides the principal federal framework governing labor-management relations. The NLRA also established the National Labor Relations Board (the Board) to administer and enforce the statute. Although the NLRA contains no express preemption provision, the U.S. Supreme Court has recognized two forms of implied preemption, known as Garmon preemption and Machinists preemption. These doctrines protect the Board's authority and preserve the uniform implementation of federal labor policy. The Associations contended that both forms of preemption applied to SB 399. California responded that SB 399 was a minimum labor standard rooted in the state's authority to protect individual employee autonomy.

After considering the parties' arguments, the District Court concluded that the NLRA preempted SB 399. The Ninth Circuit declined to address that aspect of the District Court's decision. Instead, it concluded that at least one Association had standing and was likely to succeed on its claim that SB 399 violated the First Amendment. The Court therefore did not reach California's arguments concerning NLRA preemption.[2]

First Amendment Challenge

California's defense of SB 399 against the First Amendment challenge depended on characterizing the statute as a regulation of conduct, rather than speech. According to California, SB 399 regulated an employer's retaliation against employees who exercised their statutory rights. California analogized SB 399 to anti-discrimination and anti-retaliation statutes, such as Title VII of the Civil Rights Act of 1964, that regulate conduct even when the regulated conduct involves speech the government considers objectionable.

The District Court rejected this argument, and the Ninth Circuit affirmed. The Ninth Circuit concluded that California's reliance on cases involving, for example, signs containing objectionable content missed the point. In the discrimination context, the signs were incidental: Title VII regulated the underlying racially discriminatory policy, regardless of whether the policy was communicated through signs or other speech. The elimination of objectionable speech was merely an incidental consequence of eliminating the discriminatory policy. By contrast, the Court concluded that speech was integral to SB 399 because an employer could be sanctioned only after the content of the employer's communication was examined. In making this finding, the Ninth Circuit also relied in part upon a decision of the Eleventh Circuit upholding a First Amendment challenge to a Florida statute banning mandatory training meetings concerning certain ideological subjects on the grounds that only by examining the potential content of a meeting could an employer evaluate whether the Florida statute applied to prohibit it. Honeyfund.com v. Governor, 94 F.4th 1272, 1275-76 (11th Cir. 2024).

Having concluded that SB 399 restricted speech, the Ninth Circuit agreed with the District Court that the statute was subject to strict scrutiny. Under that standard, SB 399 would have to be narrowly tailored to further a compelling state interest. The Ninth Circuit recognized that the competing interests of speakers and unwilling listeners may be accommodated through "reasonable time, place, and manner regulations applicable to all speech irrespective of content," quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975). The Ninth Circuit emphasized, however, that although SB 399 was arguably viewpoint neutral, it was not content neutral. Put simply, if a captive audience meeting concerned unionization, SB 399 applied regardless of whether the employer spoke in support of or opposition to unionization. The statute therefore failed the content-neutrality requirement of Erznoznik.

California also argued that the U.S. Supreme Court has treated "captive audience" cases differently when determining whether government action furthers a compelling interest under strict scrutiny. According to the Ninth Circuit, California's authorities stood for the proposition  "that an audience's degree of 'captivity' is relevant when the government, acting as a proprietor, excludes certain kinds of speech from nonpublic forums or when evaluating the reasonableness of content-neutral time, place, and manner restrictions imposed by the government acting as a regulator." Here, however, California was acting not as a proprietor but as a regulator. The Court observed that "[n]o federal appellate court, including the Supreme Court, has relied on a  'captive audience' theory to identify a compelling interest sufficient to support a content-based restriction on nongovernmental speech in a nongovernmental forum." The Ninth Circuit therefore concluded that SB 399 could not survive strict scrutiny and affirmed the preliminary injunction.

Conclusion

The Ninth Circuit affirmed the preliminary injunction on First Amendment grounds without reaching the District Court's separate conclusion that the NLRA preempted SB 399. In light of that ruling, California may face significant obstacles if it seeks rehearing en banc in the Ninth Circuit or files a petition for a writ of certiorari in the U.S. Supreme Court. For now, California remains preliminarily enjoined from enforcing SB 399. And this decision has an important implication for other Ninth Circuit states with similar statutes, including Alaska, Hawaii, Oregon, and Washington. Those states have enacted similar statutes (including one in Oregon that survived a state court challenge on the grounds of NLRA preemption) that are now clearly vulnerable to a new attack on First Amendment grounds.

Employers are also advised to monitor developments concerning "captive audience" meetings at the NLRB. The Board's General Counsel recently indicated that she is seeking to overturn the Biden Board's prohibition on "captive audience" meetings in Amazon.com Services, which displaced 75 years of contrary precedent. While enforcement of California's statute is still enjoined, this Biden Board precedent remains in place until reversed or modified by the current Board.

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Jeff Bosley is a partner in DWT's San Francisco office, Mike O'Brien is a partner in the firm's Anchorage office, John Corcoran is an attorney in our San Francisco office, and Kristal Graham is an associate in our Anchorage office. For any questions or more information, please contact the authors or another member of our employment services team. To stay informed, sign up for our alerts.