Hunton Employment & Labor Perspectives

On July 7, 2026, the Ninth Circuit heard oral argument over California Senate Bill 399 (“SB 399”), the state’s “captive audience” law, which prohibits employers from requiring employees to attend meetings on certain political or religious topics, including union-related issues.

The oral argument focused largely on whether the groups challenging SB 399 have standing to pursue their claims, while also raising questions about the law’s potential chilling effect on employer speech.

Background

SB 399 took effect on January 1, 2025. It prohibits employers from taking or threatening adverse action against employees who do not attend employer-sponsored meetings or participate in communications involving covered political or religious matters.

The California Chamber of Commerce and other business groups challenged the law, arguing that it infringes employers’ First Amendment rights and, as to union-related communications, is preempted by the National Labor Relations Act.

In September 2025, a federal district court preliminarily blocked enforcement of SB 399, finding that the challengers were likely to succeed on both claims. California appealed that ruling to the Ninth Circuit.

Standing

A key issue at oral argument was whether the challengers showed a sufficiently real threat of enforcement to bring a pre-enforcement challenge.

Judge Richard Paez questioned whether the employer groups had identified any member that actually intended to require attendance at a covered meeting or discipline employees who refused. Without that showing, he suggested the claimed injury might be too speculative.

The challengers argued that employers should not have to risk enforcement before seeking judicial review. They maintained that SB 399 already burdens employer communications by forcing employers to consider potential liability before speaking with employees about covered topics. Other members of the panel appeared more receptive to that argument. Judge Richard Tallman noted that pre-enforcement standing is often viewed more broadly in First Amendment cases, where the chilling of protected speech can itself be a concrete injury.

Speech Concerns

Although standing drew much of the panel’s attention, the court also examined the law’s effect on employer speech.

California argued that SB 399 regulates conduct rather than speech because employers remain free to express their views and the law only bars retaliation against employees who choose not to attend or listen. The challengers responded that the law is content based because whether it applies depends on the subject matter of the employer’s communication.

Judge Mark Bennett appeared troubled by that distinction, noting that the content of the meeting determines whether the statute applies, stating that he could “definitely see a chill” on employer speech.

The panel also pressed California on its reliance on the “captive audience” doctrine. Judge Tallman noted that the U.S. Supreme Court has not applied that doctrine in the private workplace setting, raising questions about how far that theory can extend in the employment context.

What Employers Need to Know

The Ninth Circuit has not yet issued a ruling following oral argument. For now, the preliminary injunction blocking enforcement of SB 399 remains in place.

The argument highlighted the ongoing legal uncertainty for California employers. The standing issue could give the Ninth Circuit a way to decide the appeal without fully resolving the law’s constitutionality. But the judges’ questions also suggest the Court is paying close attention to the practical effect SB 399 may have on employer communications.

Employers should continue to monitor the case closely, particularly those employers that communicate with employees about politics, religion, labor relations, or other sensitive issues. The Ninth Circuit’s decision could determine whether California may enforce SB 399 while the broader constitutional challenge moves forward.