The California Legislature’s Response to Janus v. AFSCME

Even before the United States Supreme Court decided Janus v. AFSCME, the California Legislature was anticipating that decision and passing legislation in response to it. 

As we reported in Legal Alerts last year, the Legislature passed several bills in 2017 in anticipation of Janus.

AB 119 and SB 112 imposed new obligations on public employers to provide unions access to new hires during the hiring process. Specifically, a public employer must give the exclusive representative notice of an orientation at least 10 days in advance, with an exception allowing for shorter notice when an employer needs to make an urgent hire. The employer must meet and confer with the exclusive representative over the structure, time, and manner of access. Failure to reach agreement results in compulsory interest arbitration. The employer or exclusive representative can demand arbitration 45 days after the first meeting of the parties or 60 days after the request for negotiation. The arbitrator selection process must commence within 14 days of a party’s demand for arbitration. Arbitration must commence on the arbitrator’s earliest available date or any other date to which the parties agree and must be completed within 30 days.

AB 119 also requires public employers to provide the exclusive representative with the contact information of employees. An employer must disclose the name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses, and the home address of a new hire within 30 days of the date of hire or by the first pay period of the month following hire. Employers also have an on-going obligation to provide the exclusive representative a list of that information for all employees in the bargaining unit at least every 120 days, although the employer and exclusive representative may agree to a different interval.

In addition to AB 119 and SB 112, the Legislature also passed SB 285 in 2017. That bill added Chapter 11 (commencing with section 3550) to Division 4 of Title 1 of the Government Code. It prohibits a public employer from deterring or discouraging public employees from becoming or remaining members of an employee organization. PERB has jurisdiction over violations of the new law. 

Following the Janus decision, the Legislature was swift to act in response. On the very day Janus was decided (June 27, 2018), the Governor signed into law SB 866, which makes systemic changes affecting the process by which public employers are to deduct sums from employee paychecks for union dues and fees. The changes effected by SB 866 are summarized as follows:

  • Notwithstanding Janus, California law remains that deductions for union dues may be requested by employee organizations and bona fide associations from salaries and wages of their members and public employers shall honor those requests. (The italicized phrase being newly added by SB 866.)
  • As part of the process for obtaining those deductions, employee organizations must now certify to the public employer in writing that the employee organization has and will maintain an authorization, signed by the individual from whose salary or wages the deduction or reduction is to be made. An employee organization that certifies that is had and will maintain individual employee authorizations shall not be required to provide a copy of an individual authorization to the employer, unless a dispute arises about the existence or terms of the authorization.
  • Once a public employer receives the certification from the employee organization, it must rely on it for purposes of making the deductions. The employee organization certifying the deductions is required to indemnify the public employer for any claims made by employees regarding deductions made in reliance on the certification.
  • Any changes to, or revocation of, an employee’s individual authorization must be directed to the employee organization and not to the employer. The public employer must rely on information provided by the employee organization regarding whether deductions for an employee organization were properly canceled or changed, and once again, the employee organization must indemnify the public employer for any claims made by the employee for deductions made in reliance on that information. Deductions may be revoked only pursuant to the terms of the employee’s written authorization.
  • In addition to authorizing deductions for paying dues, an employee may authorize deductions for any other service, program, or committee provided or sponsored by a recognized employee organization of which the employee is a bargaining unit member.
  • If a public employer wishes to engage in a “mass communication” (defined as a written document, or script for an oral recorded message, that is intended for delivery to multiple public employees) to public employees concerning their rights to join or support an employee organization, or to refrain from doing so, the public employer must meet and confer with the exclusive representative regarding the content of the communication. If, after meeting and conferring, the public employer and the exclusive representative are unable to come to agreement regarding the contents of the mass communication, the public employer may still disseminate its mass communication, but must also disseminate a communication of reasonable length provided by the exclusive representative.
  • In addition to the prohibition against deterring or discouraging membership in a public employee organization adopted by the Legislature in 2017, public employers also are prohibited from deterring or discouraging employees from authorizing dues or fee deductions for an employee organization. According to SB 866, this change is declaratory of existing law, meaning that the Legislature always has intended the prohibition against deterring or discouraging membership in a public employee organization to include the subject of deductions for dues or fees.
  • Finally, SB 866 amends the new employee orientation process established in 2017 by AB 119 (see above) by prohibiting notice of the new employee orientation from being disclosed to anyone other than the employees, the exclusive representative, or a vendor that is contracted to provide a service for purposes of the orientation.

SB 866 undoubtedly is not the last word from the Legislature in response to Janus. Expect more to come. In addition, public employee unions likely will seek to meet quickly with public employers regarding agency fees and this subject will certainly be a major topic during any upcoming collective bargaining. We will continue to keep you updated on Janus-related developments as they occur.