What is “Janus”?

“Janus” refers to Janus v. AFSCME, a case recently decided by the United States Supreme Court. The case involved a challenge to the Illinois Public Labor Relations Act, which, like laws in California and 21 other states, required public employees represented by unions to pay an “agency fee” to the union if they do not wish to pay full dues. The plaintiff contended that the agency fee requirement amounted to “compelled speech” in violation of the First Amendment, and the Court agreed. The Court’s decision in favor of the plaintiff will likely have an adverse financial impact on school employee unions, and in some local educational agencies, may have implications for their labor-management relations and may affect the processes for back-office operations such as payroll deductions.

Public employers must cease deductions from paychecks of employees who are union non-members immediately. Public agencies should only communicate in a neutral and factual way about the decision and what changes may result. In communicating with employees, public employers should keep in mind the recently enacted Senate Bills 285 and 866, which provide that public employers shall not deter or discourage public employees from becoming or remaining members of an employee organization or from authorizing representation by an employee organization, or from authorizing dues or fee deductions to an employee organization.

Districts/COEs should immediately stop agency fee deductions for employees who are non-members of their labor union unless those non-members affirmatively consent to pay agency fees. Under recently passed Senate Bill 866, employee requests to cancel or change authorizations for payroll deductions to the union shall be directed to the union, and the union shall process those requests. Governing boards must rely on information provided by the employee organization regarding whether the deductions were properly canceled or changed. Districts/COEs should work with payroll to ensure that agency fee deductions are discontinued, and collaborate with employee organizations to ensure compliance with the Court’s decision. Each District/COE should also review their current Collective Bargaining Agreement, focusing on provisions relating to agency fees and maintenance of membership provisions, to determine how the Janus decision impacts their existing contracts and what actions may be needed.

In some areas, we may be headed for a period of labor unrest, or at least more strained relationships with labor unions as they work to maintain their membership. Employers should also be aware of the risk of getting caught in the crossfire of disputes between unions and individual employees, or between competing organizations vying for representation rights. Employers should avoid expressing opinions or offering advice to employees regarding the implications of Janus, and should strive for neutral, factual communications in response to questions and requests. Senate Bill 866 also provides that any mass communication (written or oral based on a written script) made by a public employer 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(s). In the event the parties are unable to reach agreement on the content of the communication, the district would be able to distribute the communication, but would also need to simultaneously distribute the union’s own mass communication. Governing boards should be aware of these limitations on communications regarding union participation and tailor their responses to questions accordingly.