SB 846: Protecting Public Sector Unions and Employers from Opportunistic Post-Janus Lawsuits

On September 14, 2018, Governor Brown signed into law an important measure to protect California public sector employers and unions from opportunistic lawsuits motivated by the U.S. Supreme Court’s recent decision in Janus v. AFSCMESB 846

In Janus, the Court decided that deducting agency or fair share fees from the wages of public sector employees without their affirmative consent violated their First Amendment free-speech rights—even though those fees could only be used for contract negotiations and enforcement.  The Court reasoned that public sector bargaining by its nature will always have an impact on the state’s budget, so even spending on contract negotiation and enforcement is inherently political.  To the Court, that meant that requiring public employees to pay agency or fair share fees forces those employees to fund speech with which they may disagree.  Janus overturned 41 year-old precedent from Abood v. Detroit Board of Education, which authorized agency fees for nonmembers to cover costs associated with representation.  Prior to Janus, in including agency fee provisions in collective bargaining agreements, public sector employers and unions relied on Abood and state labor relations laws. 

Now, following the Janus decision, several lawsuits want to take advantage of Janus by attempting to force unions to repay agency and fair share fees collected before Janus was decided—fees unions collected in reliance on what had been established law for over four decades. 

These lawsuits are generally based on a combination of federal civil rights claims for violation of First Amendment free-speech rights and state claims for taking another person’s property against his/her will.  Effective immediately, SB 846 knocks out the California law claims, providing that public employers and public sector unions “shall not be liable for, and shall have a complete defense to, any claims or actions under the law of this state for requiring, receiving, or retaining agency or fair share fees.”  The new law applies to both new lawsuits and retroactively to those already pending on the date the law took effect.  The California legislature made clear its intent to “provide certainty to public employers and employee organizations that relied on state law, and to avoid disruption of public employee labor relations, after the Supreme Court’s decision in [Janus].” 

While the state legislature cannot prevent claims based on federal law from going forward, SB 846 goes a long way toward limiting the negative impacts of Janus on California’s public sector employers and unions.  For more information on the Janus decision and its impacts on public-sector unions, please contact your labor counsel.

By Eric Wiesner | October 25, 2018

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