Employers Get the Mic Back: Ninth Circuit Keeps California Captive-Audience Law on Hold

On Oct. 29, the Ninth Circuit reinforced the First Amendment’s protection of employer speech in California Chamber of Commerce v. Bonta by affirming a preliminary injunction preventing California officials from enforcing California’s “captive-audience” law, SB 399. The ruling is a significant win for employer speech, reinforcing management’s right to have a voice in workplace conversations about religious and political matters, including union representation.

SB 399 Is a Speech Restriction, Not Just an Attendance Rule

SB 399, codified at California Labor Code § 1137, prohibits adverse action against employees who decline covered meetings or communications conveying an employer’s religious or political opinions. “Political matters” includes legislation, regulation and the decision to join or support labor organizations.

The court rejected California’s argument that SB 399 regulated conduct, not speech, because an employer’s ability to require attendance depended on what it said. The Ninth Circuit’s reasoning drew on Honeyfund.com v. Governor, 94 F.4th 1272 (11th Cir. 2024), in which the Eleventh Circuit upheld an injunction against Florida’s limits on mandatory workplace training endorsing certain race- and sex-related concepts. Relying on that decision, the Ninth Circuit held that labeling a message-based restriction as an attendance rule does not avoid First Amendment scrutiny.

Because SB 399 targeted employer speech on specific subjects, the court applied a strict scrutiny standard of review and California had to show the law was narrowly tailored to serve a compelling state interest. The court was unpersuaded by the state’s argument that employees’ financial dependence on their employers made them a captive audience. Finding the business groups likely to succeed on their First Amendment claim, the Ninth Circuit affirmed the preliminary injunction.

What the Ruling Does and Does Not Change

Although the district court found the employers likely to succeed on preemption grounds pursuant to the National Labor Relations Act (NLRA), the Ninth Circuit affirmed solely on First Amendment grounds and left preemption unresolved. The ruling neither displaces the NLRA nor eliminates the Biden-era National Labor Relations Board’s (NLRB or Board) 2024 holding that an employer who required employees to attend meetings expressing an employer’s views on unionization violates Section 8(a)(1) of the NLRA, although voluntary meetings remain permissible with appropriate safeguards. In Memorandum GC 26-04 (Aug. 26, 2026), the NLRB’s general counsel, Crystal Carey, announced support for reversing the Biden Board’s decision and restoring the long-standing rule permitting mandatory meetings. That position adds to the momentum for employer speech but does not itself change Board precedent.

As we reported in our blog regarding recent Delaware legislation, at least 14 other states have similar captive-audience laws. The Ninth Circuit’s reasoning may help employers challenge these laws. For now, though, the injunction puts on hold only California’s enforcement of SB 399, and other states remain free to enforce their own laws.

What the Ruling Means for Employers

The decision matters for employers because it recognizes that rules governing attendance can also restrict management’s speech. By keeping state enforcement of SB 399 on hold, the ruling protects employers’ ability to explain how proposed laws and union representation could affect their operations, competitiveness and workplace. Its reasoning also offers a constitutional basis for challenging similar restrictions elsewhere.

Key Takeaways

• Check the injunction’s scope before assuming all exposure is gone. It is a preliminary, not a final, ruling, and SB 399 also allows individual employee lawsuits.
• Review communication policies for unnecessary restrictions on management speech. Distinguish protected speech from independently unlawful conduct and account for applicable state and federal laws.
• Multistate employers should continue to evaluate workforce communications location by location.
• Give managers clear talking points on lawful communications, prohibited threats or promises, and when to involve HR or labor counsel.
• Track Board developments and legal challenges to state laws.

The BakerHostetler Labor and Employment Practice Group is available to help employers navigate this evolving patchwork of state laws and assess the implications for workplace communications and labor relations strategy.