December 12, 2022 --
SB 931- Public Agencies Beware- PERB Can Award Penalties and Attorneys' Fees for Violations of Government Code Section 3550
Effective January 1, 2023, PERB can issue civil penalties against public employers within the jurisdiction of PERB (e.g. cities, counties, special districts, courts, the Judicial Council of California, and certain transit agencies) for violations of Government Code section 3550, and award attorneys’ fees to the prevailing union. Government Code section 3550 prohibits public employers from deterring or discouraging public employees or applicants from: (1) becoming or remaining members of an employee organization; (2) authorizing representation by an employee organization; or (3) authorizing dues or fees for an employee organization. This new law (Government Code section 3551.5) is significant because it broadens PERB’s authority.
The civil penalty can be up to $1,000 per affected employee, but cannot exceed $100,000 total. In determining the appropriate civil penalty, PERB evaluates the public employer’s annual budget, the severity of the violation, and any prior history of violations by the employer. The new law also requires PERB to award attorneys’ fees and costs to the employee organization that prevails in proving a violation of Government Code section 3550, unless PERB finds the claim to be frivolous, unreasonable or groundless when brought, or when the employee organization continues to litigate the claim after it has clearly become frivolous, unreasonable or groundless. This exception contains contradictions and ambiguities which will likely be tested in upcoming PERB proceedings.
Public employers should train all supervisors and managers concerning the new law and the importance of avoiding conduct that could result in a claimed violation of Government Code section 3550.
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