Ninth Circuit Upholds Injunction Against SB 399 Enforcement Limiting Employer Speech

On October 29, 2026, the U.S. Ninth Circuit Court of Appeals upheld the U.S. District Court’s issuance of a preliminary injunction preventing enforcement of SB 399, a law prohibiting employers from mandating employee attendance at employer-sponsored meetings related to the employer’s position on political or religious matters. SB 399 also prohibited employers from requiring employees to participate in, receive or listen to any employer communications about political or religious matters. The Ninth Circuit Court of Appeals agreed with the District Court that SB 399 improperly infringed upon an employer’s free speech rights under the First Amendment to the U.S. Constitution.

Background on SB 399

As previously reported, the California Chamber of Commerce, together with the California Restaurant Association and Western Growers Association, filed a lawsuit to prevent enforcement of SB 399, which was signed into law on September 27, 2024. The lawsuit alleged that SB 399 is employer viewpoint discrimination in violation of the First and Fourteenth Amendments to the U.S. Constitution and is preempted by federal law under the National Labor Relations Act (NLRA).

SB 399 took effect on January 1, 2025, just a day after the lawsuit was filed. Since that time, SB 399 allowed employees to decline:

• To attend employer-sponsored meetings; or
• To participate in, receive or listen to any employer communication relating to political or religious matters.

“Political matters” is broadly defined as “matters relating to elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization.” “Religious matters” is similarly broadly defined as “matters relating to religious affiliation and practice, and the decision to join or support any religious organization or association.”

Some minor exceptions exist for communications related to employee duties, or if the employer is a political or religious organization.

On September 30, 2025, the U.S. District Court preliminarily enjoined enforcement of SB 399. In its decision, the U.S. District Court found the types of communications and meetings prohibited by SB 399 to directly correlate with employer speech under the First Amendment, and thus for the state to regulate this speech it needs a compelling state interest that is narrowly tailored. The District Court didn’t see such a justification in SB 399.

In addition, the U.S. District Court also enjoined enforcement of SB 399 because the law is preempted by federal law. The District Court determined that through the enactment of the National Labor Relations Act (NLRA), all unionization efforts covered by the NLRA are regulated by federal law and thus states can’t make their own laws regulating those same unionization efforts, including mandatory meetings on the employer’s opinion related to unionization, which SB 399 regulates among other speech.

Ninth Circuit Agrees with the District Court

In concluding that the District Court was correct to enjoin SB 399, the Ninth Circuit adopted the same rationale the District Court applied when issuing the injunction.

By placing limits on an employer’s speech based on broad categories of “political” and “religious” matters, employers argued that SB 399 expressly chills the content of employers’ speech as it relates to these matters.

The State of California, defending SB 399, argued that the statute just restricts an employer’s ability to engage in conduct — such as taking an adverse employment action against an employee for refusing to listen to the employers’ viewpoint — and that it doesn’t prohibit employers from actually engaging in the speech. If true, this means SB 399 doesn’t infringe on First Amendment free speech protections.

The Ninth Circuit rejected this distinction. If an employee sues their employer for violating SB 399, the adjudicating body must evaluate the content of the employer’s speech to determine whether it was political or religious in nature as defined by SB 399. In other words, a claim under SB 399 invariably regulates speech as opposed to just conduct.

Because SB 399 is a content-based regulation of speech, the law must be subject to strict scrutiny. This means the government must show a narrowly-tailored, compelling state interest that SB 399 effectuates. The State of California argued again at the Ninth Circuit that SB 399 survives this strict scrutiny because employees are “captive audiences” at the workplace and protecting captive audiences from unwanted speech is a compelling interest.

However, as the Ninth Circuit notes, the State of California was unable to identify any single case where content-based restrictions survived because employees were considered a “captive audience” or otherwise had their substantial privacy interests invaded. Instead, as the Ninth Circuit demonstrates, “captive audience” protections have only extended to regulations where the government itself controls the premises or when evaluating time, place and manner restrictions on all speech imposed by the government.

This is not what SB 399 purports to do. Instead, SB 399 regulates the speech of nongovernmental entities in a nongovernmental setting. The Ninth Circuit determined this goes too far in extending “captive audience” protections in the absence of any prior caselaw supporting such a regulation.

Because the Ninth Circuit upheld the injunction on a First Amendment basis, it didn’t need to reach a decision on whether SB 399 was preempted because a decision either way wouldn’t alter the outcome of the decision.

The National Labor Relations Board and Mandatory Meetings

While the Ninth Circuit upholding the preliminary injunction against SB 399 is another significant win for employer speech rights, prior NLRB developments have muddied the waters. As previously reported, the NLRB in 2024 overturned more than 75 years of precedent by holding that employers are prohibited from requiring employees to attend meetings discussing unionization.

So, while SB 399 is enjoined, employers should still be aware that mandatory meetings held by employers to discuss unionization are currently prohibited under the NLRA. This may change, as the current NLRB General Counsel issued Memorandum GC 26-04 on August 26, 2026, that prioritizes, amongst other issues, overturning the 2024 NLRB mandatory meeting decision.

Employers facing current or prospective unionization efforts should stay tuned to HRCalifornia Now and keep in touch with legal counsel on current developments.

CalChamber members can read more about the National Labor Relations Act in the HR Library. Not a member? Learn how to power your business with a CalChamber membership.