by Ryan Morton (July 2018)
Municipalities, school districts, and other public employers need to adjust quickly after the U.S. Supreme Court released its long-awaited decision in Janus v. AFSCME, Council 31. In a 5-4 decision, the nation’s highest court ruled that Illinois’s law requiring non-members of public employee unions to pay their “fair share” was unconstitutional, because it forced them to financially support speech they opposed.
Now that fair share no longer exists, public employers must immediately adjust their payroll procedures. As of June 26, 2018, these employers are no longer allowed to deduct “fair share” amounts from non-union members’ paychecks. Therefore, if you have any employees paying fair share dues through payroll deductions, stop making those deductions. If you have issued checks already for this pay period with that fair share portion deducted, but the money has not been sent to the union, you must refund that amount to the employees. The Janus decision essentially renders fair share provisions in collective bargaining agreements (CBAs) null and void. However, you must review the specific language of your CBA to determine if you have an obligation to negotiate with the union over the impact of Janus.
Although Janus does not affect dues-paying union members, some union members might want to cancel their membership in the wake of this decision, since they can receive the benefits of the union without paying their “fair share.” Unions still have a duty to fairly represent all employees in the bargaining unit. What should a public employer do, then, if an employee asks to withdraw from the union and cancel their dues deduction?
Illinois law allows employees to cancel automatic deductions for union dues by submitting a written request to the employer, revoking their authorization. However, some CBAs include a requirement that dues deductions may not be revoked except for certain time periods or a “Maintenance of Membership” clause, which requires that union members continue their membership until the contract expires. Ottosen Britz believes these clauses are unenforceable under Illinois law, especially in the wake of the Janus ruling. If your CBA includes this type of provision, talk to your attorney before stopping an employee’s dues deduction.
One more piece of advice: be careful what you tell employees regarding union membership and the Janus decision. If you currently have “fair share” employees, it would be wise to contact the union and those non-members to let them know the deductions have stopped. Beyond that, employers may provide factual information but must be careful not to explain too much to employees seeking to leave their union. That communication might be viewed as encouraging them to leave the union, which could lead to an unfair labor practice charge. If employees have questions about their union membership, direct them to their union representative or to the applicable state labor relations board. Finally, be on the lookout for any retaliation or coercion by union members against non-members. If you become aware of such inappropriate activity, talk to your attorney to ensure that your response does not also constitute an unfair labor practice.
If you have more questions about the implications of Janus, please contact an attorney at Ottosen Britz for more detailed advice.