In the wake of Janus, groups such as the National Right to Work Foundation have been promoting litigation against public employee unions to recoup agency shop and fair share dues paid prior to Janus. In response to a series of federal lawsuits seeking back-dated dues and fees from California public employee unions, the legislature passed S.B. 846.
Among other things, the Bill provides California public employee recognized bargaining organizations immunity from suits over previously paid fees. Anti-union activists had argued that the fees have always been unconstitutional and unions assumed the risk of having to reimburse the fees by continuing to collect them despite dicta in earlier Supreme Court cases calling into question their validity. The Bill, signed by the Governor on September 14, 2018, resolves the legal question and provides unions protection from costly litigation over practices that were legal prior to Janus. The Bill adds Government Code 1159, which state in relevant part:
(e) The Legislature finds and declares:
(1) Application of this section to pending claims and actions clarifies existing state law rather than changes it. Public employees who paid agency or fair share fees as a condition of public employment in accordance with state law and Supreme Court precedent prior to June 27, 2018, had no legitimate expectation of receiving that money under any available cause of action. Public employers and employee organizations who relied on, and abided by, state law and Supreme Court precedent in deducting and accepting those fees were not liable to refund them. Agency or fair share fees paid for collective bargaining representation that employee organizations were obligated by state law to provide to public employees. Application of this section to pending claims will preserve, rather than interfere with, important reliance interests.
(2) This section is necessary 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 v. American Federation of State, County, and Mun. Employees, Council 31 (2018) 138 S.Ct. 2448.
