On June 27, 2018, Governor Jerry Brown signed the State Budget Act along with several trailer bills, including Senate Bill 866. This bill takes effect immediately and applies to public employers, including school districts, community college districts, and county offices of education. Following the United States Supreme Court’s decision in Janus v. AFSCME, which ruled mandatory agency fees paid by non-union members to public-sector unions are unconstitutional, the Legislature made significant changes in three related areas of the law described below.
Processing Union Dues Authorizations, Changes and Revocations
SB 866 sets forth procedures and conditions regarding employee authorizations and revocation of authorizations for the deduction and modification of union dues as follows:
- Employers must honor the terms of an employee’s written authorization for union dues deductions.
- If a union certifies that it has and will maintain employees’ written authorizations for dues deductions, the union is not required to submit to the employer a copy of the written authorization in order for the payroll deductions to be effective. The union is, however, required to submit such copy to the employer if there is a dispute about the existence or terms of the written authorization. The union must indemnify the employer for any employee claims regarding employer deductions made in reliance on notification from the union.
- Employees may revoke their written authorization for union dues deductions according to the terms of the authorization they signed. Such revocation must be in writing and is effective pursuant to the terms of the written authorization.
- Employee requests to modify or cancel dues deductions must be directed to the union rather than the employer. The union is responsible for processing all requests, and the employer must rely on the information provided by the union regarding whether dues deductions were properly canceled or changed. The union must indemnify the employer for any employee claims regarding employer deductions made in reliance on information from the union.
Mass Employee Communications Concerning Union Membership Rights
SB 866 sets forth several requirements if an employer decides to communicate with employees regarding their union membership rights through a “mass communication,” which the law defines as a written document, or script for an oral or recorded message or presentation, that is intended for delivery to multiple public employees.
- If the employer chooses to disseminate a mass communication to public employees or applicants to be public employees regarding their rights to join or support the union, or to refrain from joining or supporting a union, the employer must first meet and confer with the union concerning the content of the mass communication.
- If the employer and union do not agree on the content of the mass communication, and the employer still chooses to send out the mass communication, the employer must do the following: send out the employer’s version of the mass communication, and, at the same time, send out the union’s mass communication of reasonable length. The union must provide the employer with adequate copies of its own mass communication for such a distribution.
Confidentiality of AB 119 New Employee Orientation Information
In an effort to keep confidential new employee orientations held pursuant to AB 119, SB 866 provides that the date, time, and place of new employee orientations shall not be disclosed to anyone other than the employees, the union, or a vendor that is contracted to provide a service for purposes of the orientation.
SB 866 gives unions the primary responsibility for processing any changes (e.g., increases) or cancellations to dues deductions by their members, and allows unions, not the employer, to maintain employees’ written authorizations for dues deductions. Not only may unions exclusively decide the amount of the union dues, but they may also exclusively decide the terms of maintaining and withdrawing union membership. These matters are between the union and its members, and employers should not intervene and get caught in the crossfire. The law both accords these responsibilities exclusively to the union as well as the accountability, which is reflected in the requirement that the union must indemnify the employer for employee claims regarding deductions.
The immediate next step for employers should be to check with their unions to determine if they intend to maintain employees’ written authorizations for dues deductions. If so, employers should obtain the unions’ written certifications that they will maintain dues deduction authorizations. Moving forward, the union will be responsible for notifying the employer about which employees will have dues deducted from their paychecks and the amounts of such deductions, which the employer must honor. Only if the employer is aware of a dispute concerning the union’s information regarding any employee’s authorization for dues deduction may the employer ask to see a copy of the written authorization. Any request to change or cancel dues deductions must be directed to the union rather than the employer.
The new meet and confer requirement surrounding mass communications to employees is limited in scope to communications that relate only to an employee’s right to join or support (or to refrain from joining or supporting) a union, and to predetermined/prepared messages. Employers may still answer day-to-day questions from employees regarding payroll issues so long as they are factually accurate and do not solicit withdrawal from union membership, or promise benefits or threaten reprisal regarding union membership.
Finally, keep in mind when planning new employee orientations, including drafting documents and communications, that the date, time, and place of such orientations must be kept confidential, except to employees, the union, and qualifying vendors. This includes maintaining such information confidential in response to a Public Records Act request.
If you have any questions regarding this decision, please contact a DWK attorney.