Supreme Court Invalidates Fair Share

The Supreme Court issued its decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al. on June 27, 2018.  The question before the Court was whether a public employee who does not join a union may be compelled to pay a “fair share” fee to that union.  The Court ruled that no fair share fee may be deducted from a non-member’s wages unless the employee affirmatively consents to such payment.  The Court held that mandating non-members to pay fair share fees without their affirmative consent violates the First Amendment. 

The Janus decision only invalidates fair share fees of non-member public employees.  The union dues that the employer withholds and pays to the union on behalf of union members are not affected by the decision.  To comply with this decision, the employer should first verify which employees are paying fair share fees.  This can be accomplished by an independent review of payroll deductions or by relying upon a list provided by the union.

ANTICIPATED QUESTIONS

If we currently have fair share employees, should we immediately cease deducting fair share fees from their checks? 

Yes.  The employer must immediately cease taking fair share fees from the non-member employees’ checks unless and until a newly signed consent from the non-member employee to withhold fair share is executed. Consents to fair share fees executed prior to the Janus decision would not be legally sufficient to authorize continued deductions.  Previously authorized consents to withhold union members’ dues are not affected by Janus and should continue to be withheld. 

What if an employee asks for fair share money to be refunded from prior years? 

At the time those fair share fees were collected and paid to the union, it was pursuant to a collective bargaining agreement, and fair share fees were recognized as a legitimate withholding under the law.  The employer does not have to “pay back” an employee for fair share fees paid to the union before Janus was issued.

Do we need to notify employees about this ruling? 

There is no duty to notify employees of the Janus ruling, and the employer should proceed cautiously in directly communicating with employees regarding the decision.  We recommend the employer attempt to discuss with the union any notice to employees related to Janus prior to directly communicating with the employees.  We further suggest that the Board attorney review any statement before issuance to avoid potential unfair labor practice claims. 

Do we need to notify the union of actions we will take in response to Janus?

We recommend notifying the union of the employer’s plans in implementing the Janus decision.   Doing so may help avoid complaints from the union that the employer took unilateral action in violation of the collective bargaining agreement or under the relevant labor relations acts.

Do we need to reopen our existing contract related to fair share?

No. Janus has ruled that withholding fair share fees without affirmative consent of a non-union employee is no longer authorized. The employer must follow the law and stop withholding fair share fees unless or until a post-Janus consent is obtained from the non-member employee.  Any fair share provision in the collective bargaining which requires non-members to pay fair share fees without their affirmative consent is illegal and void because of the Janus decision.