SB 285: Public employers and union membership

Senate Bill 285 adds the following section to the Government Code: "A public employer shall not deter or discourage public employees from becoming or remaining members of an employee organization." California law already prohibits the use of state funds to deter union organizing. SB 285, however, applies to all public employers. Additionally, the Public Employment Relations Board has jurisdiction to enforce this provision.

This bill's author, Sen. Toni Atkins (D-San Diego), explained that while current law prohibits public employers from interfering with, intimidating, restraining, coercing or discriminating against public employees who exercise their right to union representation in the workplace, "this protection does not extend to employees who are choosing whether or not to become or remain union members." SB 285 addresses unions' concern that employers may attempt to coerce employees to withdraw -- or convince new employees to abstain from -- union membership.

SB 285 will also assist unions if and when the U.S. Supreme Court holds that agency fees cannot be imposed in the public sector. This term the high court agreed to hear Janus v. AFSCME and decide whether public sector employees who are not union members can be required to pay "agency fees" to unions. With Justice Neil Gorsuch making up the ninth member of the court, a decision in this case is expected to make mandatory public sector agency fees illegal and consequently weaken public sector unions.

SB 285 will impact employers and employees in several crucial ways. First, if the Supreme Court deems agency fees illegal, unions cannot collect fees from employees who decline to join. Under SB 285, such employees will become "free riders," as they will benefit from protection under Memoranda of Understanding without paying union dues. Second, employers may be chilled from thoroughly answering employees' questions about union membership. Because SB 285 does not define what constitutes "deterrence" or "discouragement," if an employer provides information about union membership to an employee and that employee then elects not to join the union, the employer may be found to have violated SB 285.