Employers Prohibited from Deterring or Discouraging Union Membership

Lozano Smith Client News Brief
December 2017
Number 83

Senate Bill (SB) 285 prohibits public employers from deterring or discouraging their employees from becoming or remaining members of a union. In doing so, the bill closes a perceived loophole in California law regarding union rights and the employer/union relationship.

The bill becomes effective on January 1, 2018.

Existing law prohibits public employers from using state funds to assist, promote, or deter union organizing. According to the author of SB 285, this protection does not extend to employees who are choosing whether to become or remain union members. SB 285 would close this perceived loophole by ensuring that employers do not attempt to negatively influence this decision.

For purposes of SB 285, a public employer is defined to include counties, cities, districts, the state, school districts, county boards of education, transit districts, the University of California, and the California State University, among others.

SB 285 also grants the Public Employment Relations Board (PERB) jurisdiction over violations of its provisions. PERB is the quasi-judicial administrative agency responsible for resolving disputes and enforcing the statutory duties and rights of local public agency employers and unions.

SB 285 is another preemptive effort to lighten the blow of a potentially unfavorable ruling by the Supreme Court in Janus v. AFSCME, Council 31. (See 2017 Client News Brief No. 67.) The Janus case challenges the constitutionality of “fair share” or “agency” fees collected by unions. An unfavorable ruling for the union in this case could mean that employees would no longer be required to pay anything if they decline membership in the union. Assembly Bill 119 is a similarly preemptive bill, granting unions a statutory right of access to employees through new employee orientations. (See 2017 Client News Brief No. 34.)

As is sometimes the nature of new legislation, SB 285 presents challenges for public employers. Specifically, “deter” and “discourage” are left undefined, leaving space for unions to attempt to interpret and apply them broadly against public employers.

For more information on SB 285 or its impacts on employer practices, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.
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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.