Politics & Government

State workers looking to recover ‘fair share’ fees must overcome new California law

California Gov. Jerry Brown has signed a law that aims to give public employee unions legal cover from potentially expensive lawsuits demanding that they repay certain fees to workers that the Supreme Court in June determined were unconstitutional.

The law, which takes effect immediately, says unions and public agencies cannot be held liable for fees that unions collected before the Supreme Court ruling in Janus vs. AFSCME on June 27 of this year.

That 5-4 court decision ended a 41-year precedent that allowed public sector unions to collect so-called fair share fees from workers who did not choose to join a labor organization but were still represented by a union. The fees often ranged 70 percent to 99 percent of full dues.

Since that ruling, workers have filed a number of lawsuits around the country demanding that unions return fair-share fees to them. In some cases, workers claim unions also misled them about membership options and coerced them into paying full dues.

A group of 15 California public employees filed the latest lawsuit on Monday in federal court in Sacramento. They’re demanding that seven California public employee unions return fees and dues to workers who did not want to join them.

It’s at least the second case filed by former Texas Solicitor General Jonathan Mitchell and Sacramento attorney Bradley Benbrook seeking back-dated dues and fees from California public employee unions. Among the defendants in the new case are state government’s largest union, SEIU Local 1000, and California State University Employees Union.

The California law probably won’t help unions much in that case because it was filed in federal court. The new law limits their exposure against similar lawsuits in state court.

Unions view the lawsuits as “frivolous” but costly attempts to tie them down in court. They stress that they were collecting fair-share fees legally for decades until the recent decision banning them.

“When any business or industry complies with the law, they shouldn’t be held liable for what they were doing that was in full compliance with the law,” said Anne Giese, general counsel for state government’s largest union, SEIU Local 1000. SEIU Local 1000 is one of the unions facing a claim demanding fair share fees that workers paid prior to the court decision.

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Patrick Semmens, vice president of the National Right to Work Foundation, called the law “a cynical legislative giveaway to union bosses.” His organization also is suing California unions for dues and fees they’ve already collected.

“For decades, union officials have violated the constitutional rights of the very workers they claim to represent, and it is shameful that politicians in Sacramento are so beholden to Big Labor that they are now attempting to block a few years’ worth of those ill-gotten gains from being returned to those worker,” he said in a written statement.

Will Baude, a University of Chicago law professor, wrote in a July article for Reason that unions face some risk in the lawsuits. The court majority in the Janus decision used sweeping language that declared the fees unconstitutional, and the fees could be considered to have always been unconstitutional.

He and his co-author, UCLA law professor Eugene Volokh, outlined other precedents that could give the unions trouble in court. They pointed to a 2012 Supreme Court decision that raised the possibility for fair-share fees to be invalidated.

“The courts may well conclude that unions were knowingly gambling on the continued validity of (the original decision sanctioning fair-share fees), and therefore cannot complain about their losses,” Baude and Volokh wrote.

This story was updated at 9:55 a.m. Sept. 19, 2018, to correct that the union protections in Senate Bill 846 take effect immediately.

Adam Ashton: 916-321-1063, @Adam_Ashton. Sign up for state worker news alerts at sacbee.com/newsletters.