As previously reported here, Western Growers, the California Chamber of Commerce and coalition partners challenged SB 399, California’s so-called “captive audience” statute, and secured a preliminary injunction blocking enforcement of the law while the case proceeds. The district court found that SB 399 likely violates the First Amendment and is preempted by the National Labor Relations Act to the extent it restricts employer communications about unionization.
On July 7, 2026, the Ninth Circuit heard oral argument in the state’s appeal of that preliminary injunction. Plaintiffs’ counsel, Lonnie Giamela, argued before the court alongside counsel for the U.S. Chamber of Commerce, which filed an amicus brief in support of the plaintiffs.
SB 399 restricts an employer’s ability to require employees to attend meetings or participate in communications concerning certain political or religious matters, including union-related issues. The law has raised significant concerns for employers because it implicates workplace communications that have long been protected under federal labor law and the First Amendment.
The July 7 argument focused primarily on three issues. First, the panel questioned whether the plaintiffs had established organizational standing, including whether their declarations were sufficient to support a pre-enforcement challenge. Second, the court examined whether the First Amendment applies to employer speech in the private workplace. Third, the panel considered whether SB 399 is preempted by the National Labor Relations Act.
The panel also explored how the statute should be characterized. Plaintiffs argue that SB 399 regulates employer speech based on content and viewpoint. The state, by contrast, has argued that the law addresses employee discipline and workplace conduct, rather than speech itself.
The case has now been submitted for decision. There is no firm deadline for a decision. A ruling within approximately three months would be a reasonable target, although the timing remains entirely within the court’s discretion.
Western Growers will continue to monitor the litigation and provide updates as the case develops. Employers should continue to exercise caution when addressing union-related, political, or religious topics in mandatory workplace meetings while the preliminary injunction remains in place and the appeal is pending.