Life after Janus
The Supreme Court’s decision in Janus v. AFSCME and the new laws passed by the California Legislature have created new restrictions and open questions for school districts and county offices of education.
The 5-4 decision in Janus transforms public sector employment relations and collective bargaining by declaring that mandatory agency fees are unconstitutional because such fees support political speech and, when mandatory, violate the First Amendment of the U.S. Constitution. Agency fees had previously been paid by non-union members for collective bargaining activities.
Impact of recent legislation on board communications
In anticipation of the Janus decision, labor unions throughout California lobbied legislators to obtain more protective and union-friendly laws, including Assembly Bill 119, requiring public employers to give unions access to new employee orientations and onboarding and Senate Bill 285, signed into law in October 2017, which makes it unlawful for a public employer to “deter or discourage public employees from becoming or remaining members of an employee organization.”

SB 866 — signed by Gov. Jerry Brown on June 27, 2018, the day the Janus decision was issued — took effect immediately and contains several provisions, one of which will impact certain district communications. This bill provides that any mass communication made by a public employer to multiple employees concerning public employees’ rights to join or support a union, or to refrain from doing so, is subject to the meet-and-confer process with the union. In the event the parties are unable to reach agreement on the content of the communication, the district may still distribute the communication, but would also need to simultaneously distribute the union’s own mass communication. “Mass communication” is defined as “a written document, or script for an oral or recorded presentation or message, that is intended for delivery to multiple public employees.”

Some board members may be understandably frustrated by the limitations on district and board communication put in place by the recent legislation. CSBA has consistently opposed these efforts to limit employer contact with employees and is currently supporting efforts to pass a “cleanup” bill so that the speech rights of board members to address issues of public concern raised by Janus and SB 866 will not be stifled.

However, given the restrictions in place with SB 866, and to protect CSBA members from unknowingly incurring unnecessary risk, CSBA recommends that board members refer employee questions involving the employee’s status with the union to the superintendent or to management staff identified as the superintendent’s designee. Given the complexity of the employer’s role, in the near term, responses to employees are best made by management staff who should be familiar with SB 866 and know whether the question, such as requests to change or cancel membership, must be referred to the union.

The Supreme Court’s decision in Janus v. AFSCME and the new laws passed by the California Legislature have created new restrictions and open questions for school districts and county offices of education.
Employee written authorizations
CSBA’s recently revised sample Board Policy 4140 addresses the changes in processing membership dues and other payments to employee organizations after the enactment of SB 866 and the Court’s decision in Janus.

Education Code 45060 and 45168, as amended by SB 866, provide that the employee organization will handle and process employee written authorizations if it certifies that it has and will maintain individual employee authorizations. When such certification is provided to the district, the employee organization is not required to submit a copy of the written authorization in order for the payroll deductions to be effective, unless there is a dispute about the existence or terms of the written authorization. The employee organization that has certified it will process employee authorizations must indemnify the district for any employee claims regarding payroll deductions made by the district in reliance on notification from the employee organization.

California Public Records Act requests
Many school districts are receiving CPRA requests for data about unionized employees, including their work email addresses. School districts are obligated under the CPRA to identify public records and information that are responsive to the request, and provide records that are not otherwise exempt from disclosure. If employees’ work email addresses are not currently publicly available, school districts may consider, under the CPRA’s “catch all” exemption, withholding that contact information for privacy reasons, but should discuss such action with legal counsel before withholding the information.

CSBA’s August Legal Update Webcast “Life after Janus” will discuss statewide issues facing CSBA members. See the webcast at