Janus v. AFSCME and new California legislation

The impact on California’s local educational agencies

The Supreme Court’s Decision: On June 27, 2018, the U.S. Supreme Court ruled in Janus v. AFSCME that public employee unions can no longer collect mandatory agency fees from the public employees they represent. The Court’s 5-4 decision overturned its 1977 Abood v. Detroit Board of Education decision, creating an uncertain future for public employee unions and ripple effects for school districts and county offices of education throughout California.

Prior to the Court’s ruling, in California and 21 other states, public employees were required to pay an agency fee if they chose not to join the union — these fees covered the union’s collective bargaining activities and other nonpolitical spending. Employees were only able to opt out of the fees that would go toward a union’s political activities, such as lobbying, donations to campaigns and donations to political candidates.

The plaintiff in this case, Mark Janus, argued that compelling employees to pay agency fees was a violation of their First Amendment rights — that labor union bargaining activity is inherently political as well, and he should be able to opt out of paying any fees to the union. The Court found that a mandatory agency fee “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

Public employees can no longer be compelled to pay agency fees if they choose not to join their union.

The impact on public employee unions

Public employee unions in California lost significant revenue streams when the Court’s decision was announced, as existing nonmembers no longer could be compelled to pay agency fees. Beyond this initial loss of dollars, labor unions must now contend with the prospect of losing existing members who now have greater financial incentive to opt out of membership. Labor unions in several states around the country have experienced meaningful losses in membership after their respective legislatures repealed laws requiring agency fees. How big the loss of members will be for California labor unions remains an open question.

Next steps for school boards and county offices of education

Although the Court’s decision has a greater immediate impact on employees and labor unions than on public employers, school districts and county offices of education must still take steps to respond to the changing legal landscape.

Public employers should ensure they have stopped collecting agency fees from nonmembers, implement a communication plan to respond to questions related to union membership and work with legal counsel to examine collective bargaining agreements to determine how the Court’s decision may impact current contract language. Public employers need to be cognizant of recently passed California legislation as well, which adds requirements for and limitations on school districts and county offices of education.

New California legislation

California bills in 2017 and 2018 included language aimed at helping labor unions retain members and recruit new members. These new laws alter the way public employers conduct employee orientations, communicate with employees about membership in their union and process records of union membership.

Senate Bill 866, signed into law on the same day as the Janus ruling, went into effect immediately and contained a number of provisions relevant to school districts and county offices of education:

Discouraging membership

While governing board members or the superintendent or designee may communicate with district employees regarding their rights under the law by providing factual, accurate information, Government Code 3550, as amended by SB 866, prohibits a public employer from deterring or discouraging employees or job applicants from becoming or remaining members of an employee organization.

When an employee approaches the school district with questions specifically about the benefits of the membership in an employee organization, the employee should be referred to the employee organization.

Mass communications

Government Code 3553, as added by SB 866, creates requirements for school districts that choose to distribute a mass communication (written document, oral script or recorded presentation) regarding employees’ rights to join, support or refrain from joining or supporting an employee organization. Before distributing any mass communication concerning employees’ right to join a union, the superintendent or designee must meet and confer with the union regarding the content of the communication. If the district and union do not come to agreement on the content of the mass communication, the superintendent or designee can still distribute the district’s mass communication, but must also distribute a communication from the union.

Access to employee orientations

A school district must permit labor unions access to new employee orientations where newly hired employees are advised of their employment status, benefits, responsibilities or any other employment-related matters. SB 866 added the requirement that the date, time and place of the orientation shall not be disclosed to anyone other than employees, the exclusive representative or a vendor that is contracted to provide a service for purposes of the orientation.

Processing union membership dues

Education Code 45060 and 45168, as amended by SB 866, set forth the process for handling authorizations, changes and cancellations for labor union dues or other payments. Specifically, the union 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 union 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 union is required to indemnify the district for any employee claims regarding payroll deductions made by the district in reliance on notification from the union. Districts should note that the bill language does not specifically require the union to provide legal defense to the district.

When a union declines to provide such certification, then the district should request a copy of the employee written authorization before making the payroll deductions. Employee requests to cancel or change authorization for payroll deductions must be directed to the union rather than the district.

CSBA Sample Board Policy 4140 has been updated to reflect the Court’s ruling and the new legislation, including helpful guidance for board members navigating this new post-Janus landscape.

Additional note

School districts throughout California have received California Public Records Act requests from groups for data about employees, including employees’ names, union membership and 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, whether it may withhold that contact information for privacy reasons, but should discuss such action with legal counsel before withholding the information.

For additional CSBA resources regarding the Janus case, visit www.csba.org/janusupdate.

Please note this information is intended as guidance and does not constitute legal advice from CSBA. We recommend that you consult with your legal counsel prior to acting on any information contained herein.