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By Jenell Van Bindsbergen, Partner at Lozano Smith

After 40 years of longstanding precedent, wherein public sector unions were allowed to collect agency fees from non-union members, the United States Supreme Court has held, in Janus v. AFSCME, that public employees may not be compelled to pay mandatory agency fees, or “fair share” fees, to public-sector unions without affirmative consent, because such fees violate the First Amendment. This decision immediately affects laws in at least 22 states, including California.

In support of its decision the Court noted “[c]ompelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”  Thus, “[n]either an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” 

However, the story does not end with the Janus ruling.  In anticipation of the ruling, California proposed Senate Bill (SB) 866, which was adopted and signed into law by the Governor on June 27, 2018, and became effective immediately.  The new California law relates directly to public employers’ deduction of union dues and fees. Among other new requirements, public employers are now required to rely on the representations of the union regarding which employees have authorized deductions of union fees. Such a requirement arguably creates a potential conflict with the Supreme Court’s express statement that an employee must “affirmatively consent to pay,” because under SB 866 not only do employers have to rely on union representations, but the employer is also not entitled to see the authorization before making a deduction unless there is a dispute.

SB 866 also:

• requires employers to honor the request of the union to implement payroll deductions; 
• requires the employer to direct questions regarding cancelation or changes to the employee organization; 
• requires unions to indemnify public employers against claims regarding dues deductions made in reliance on information provided by the union; 
• permits public agencies to recover, from the dues and fees transmitted to the union, the actual reasonable cost of making the deductions; 
• makes the date, time and location of new employee orientation sessions confidential;
• prohibits public employers from discouraging or deterring public employees or applicants from becoming union members, remaining union members; or authorizing fee deductions; and
• requires the employer and union to meet and confer regarding any mass communication related to public employees’ right to support or join, or to refrain from supporting or joining, a union. 

Following the Court’s decision and the new legislation, California agencies must now decide how to move forward in this new era of contradiction. Accordingly, in consultation with legal counsel, public agency employers may wish to: 

1. review their collective bargaining agreements to determine how the Court’s decision and the new laws impact current contract language, and determine whether any immediate action or negotiation is required; 
2. develop a communication plan to address the likely questions that will come from employees and unions; 
3. communicate with union leadership to confirm and identify employees who are agency fee payers and develop a strategy to ensure prompt compliance; and 
4. keep apprised of other bills currently pending in the California Legislature that address union dues and labor relations.

For a comprehensive toolkit and breakdown of these critical new changes, download a Janus Toolkit at
www.lozanosmith.com/janustoolkit.php. 

Disclaimer: As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this document does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Author: Jenell Van Bindsbergen, jvanbindsbergen@lozanosmith.com