Janus Strikes Down Deductions for Agency Fees Without “Affirmative Consent”
On June 27, 2018, the Supreme Court ruled that so-called union “agency fees” collected from non-members of public employee unions violates the non-members’ First Amendment rights because it compels the non-members to support speech with which they may not agree. As a result, “(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.”
Senate Bill 866 Seeks to Blunt the Impact of Janus
At the same time, Governor Brown signed in to law SB 866 which made multiple changes to the Education Code and Government Code with respect to deductions from employee wages and limits on an employer’s ability to send “mass communications” to employees about their rights to join or not join an employee organization. SB 866 was not limited to these two issues, but they are the focus of this Legal Alert as they are of immediate interest to public employers. (You can view SB 866 in its entirety here.)
SB 866 was drafted in anticipation of the Janus ruling without the benefit of the actual ruling, raising difficult questions for employers about whether Janus and SB 866 conflict with each other. SB 866 requires employers to make deductions from an employee’s wages “by the amount which it has been requested in a revocable written authorization by the employee . . . for the purpose of paying the dues . . . in any local professional organization or in any statewide professional organization . . . or for any other service, program, or committee.” Additionally, “[t]he revocable written authorization shall remain in effect until expressly revoked in writing by the employee . . . . The governing board shall honor the terms of the employee’s written authorization for payroll deductions.” (See, e.g., Educ. Code §§ 45060(a), (c), (e); see also Govt. Code §§ 1150, 1152, 1153, and 1157.3 for similar requirements for non-education public agencies.)
Balancing Janus and SB 866
The question facing employers is: are SB 866’s provisions about honoring employees’ existing authorizations to deduct agency fees compatible with Janus’s ruling that employees must affirmatively consent to wage deductions for agency fees? Stated differently, does an existing authorization to make a deduction for an agency fee constitute “affirmative consent” under Janus?
We can reasonably predict the competing answers to these questions. “Yes,” some may say, existing authorizations constitute “affirmative consent” under Janus, so public employers must continue to make the deductions under SB 866 unless they receive notice that an employee has revoked consent. Others will argue “no” by reasoning that employees were previously given a choice restricted to paying full union dues or a lesser agency fee, so choosing the lesser agency fee was not “affirmative consent” within the meaning and intent of the Janus ruling; therefore, public employers should stop collecting agency fees immediately unless they receive notice that employees have opted to continue paying agency fees.
Unless or until the Legislature or the courts provide further guidance on these issues, public employers must do their best to honor state law and the Supreme Court’s ruling. You should consult with your legal counsel to determine the best approach to existing employees’ agency fees deductions for your unique situation. However, we generally recommend that public employers inform their employees’ exclusive representatives for collective bargaining (the “union”) that agency fees will no longer be collected unless or until the union identifies the employees for whom agency fees should be deducted. If a public employer relies upon information provided by the local union(s) about which employees have and have not authorized the deduction of union dues or agency fees, SB 866 provides that the union shall indemnify the employer for any employee claims related to deductions made in reliance on the union-provided information. (See, e.g., Educ. Code § 45060(e); Govt. Code § 1157.12.)
Ultimately, a collaborative approach is the best method to avoid potential liability and, if your local union promptly provides information on authorizations for agency fee deductions, a public employer has the best chance to comply with both Janus and SB 866 while protecting itself from legal challenges.
SB 866 Also Places New Limits on Employers’ Communications With Employees
Collaboration is also required if a public employer wishes to communicate with employees about their rights post-Janus. The employer must meet and confer with the employees’ exclusive representative on the content of any “mass communication” to employees or job applicants about their rights to joint and support or not join and not support an employee organization. (Govt. Code § 3553.) The phrase “mass communication” can be misleading because it covers a written document or script for an oral message that will be delivered to “multiple” employees. (Govt. Code § 3553(e).) If the parties cannot agree on the content of the mass communication, then the employer must simultaneously distribute or communicate its message with a message from the employees’ exclusive representative “of reasonable length.” (Govt. Code § 3553(c).)