On September 14, 2018, Governor Brown signed urgency legislation that prohibits liability of any public employer or union, their officers and agents, and the State Controller, for the collection of agency fees prior to the Supreme Court’s June 27 ruling in Janus v. American Federation of State, County, and Municipal Employees, Council 31. The Janus decision declared agency fees unconstitutional in violation of the First Amendment. Since that ruling, various organizations and individuals have filed class action lawsuits seeking to recover agency fees collected prior to the Janus decision, on the basis that the fees were unlawful even before the Supreme Court decided the case.

Senate Bill 846 adds section 1159 to the Government Code, which precludes liability and provides a “complete defense” against claims or actions under California state law for “requiring, deducting, receiving, or retaining agency or fair share fees from public employees.” It also deprives current or former public employees of standing to pursue these claims or actions, as long as the fees were permitted under state law at the time they were deducted or paid prior to June 27, 2018. At that time, state law required payment of agency fees by public employees who declined to join a union.

SB 846 states the legislation 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.” The new statute applies to claims and actions pending on its effective date (September 14) as well as to later-filed claims and actions. The legislation thus blocks new lawsuits and purports to terminate current litigation. In applying the provisions to

pending lawsuits, the Legislature declared that SB 846 “clarifies existing law rather than changes it.”

The bill is labeled “urgency” legislation, meaning it takes effect immediately. We anticipate at least some of the current litigation will continue in the near term as the parties file motions asking the courts to comply with — or challenging — SB 846.

We will continue to publish updates as the aftershocks from the Janus decision affect the public sector in California.