School Law Update

JANUS – WHAT ABOUT?
This case involved a lawsuit brought by an Illinois public employee, Mark Janus, challenging a union’s right to collect dues and fees (so-called fair share provisions), without his consent. Janus claimed that compelling him to pay the union any fees violated his First Amendment rights. He did not join the union and strongly objected to the positions the union took in collective bargaining and related activities. For some 50 years, fair share arrangements have been approved by the Supreme Court and Janus sought to overturn this law.

U.S. SUPREME COURT RULING
On June 27, 2018, in a 5-4 decision, the U.S. Supreme Court, overruled Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), and held: “[t]he State’s extraction of agency fees [fair share dues] from nonconsenting public-sector employees violates the First Amendment.” In short, employees cannot be compelled to pay fair share fees because doing so violates the free speech rights of the employee by compelling him/her to subsidize the union’s “private speech on matters of substantial public concern.” Employees cannot be compelled to authorize deductions (whether dues or fees) from their pay to a union. They must affirmatively approve these deductions.

WHAT DOES IT MEAN?
The ruling most directly applies to all public-sector unions and public employers & employees, including public school district and community college employees in States, such as Illinois, which currently allow unions to negotiate fair share dues. As a result of the decision, it is now unconstitutional, i.e. illegal, to withdraw fair share dues, unless an employee has specifically authorized the deductions.

WHAT NEXT?

1. Immediately cease making payroll deductions of fair share dues/fees from employees who have not otherwise authorized such deductions. Generally, these are non-members of the union.
   
2. If you have any fair share dues that have been deducted from the pay of employees but have not yet been forwarded to the local collective bargaining unit, then return these monies to the affected employees on your next payroll.
   
3. Employees need to affirmatively “opt-in” to have union dues or fair share fees deducted from their pay. Thus, no deductions for union dues should be made unless there is prior written authorization from an employee consenting to a payroll deduction for union dues, whether fair share or union dues.
   
4. Communicate with your collective bargaining representatives regarding how you will handle the cessation of fair share dues payroll deductions. The communications may include description of new or modified payroll processes, a list of affected employees to make sure you and the union agree on the dues that will continue to be deducted, and a process for rectifying future errors in deductions.
5. Request meeting with union representatives to discuss amendment of CBA language to comply with Janus if your current CBA has fair share provisions. This may include a procedure to determine if employees approve withholding fees.
6. Remain neutral in communicating with employees about the impact of ruling. Initially, we recommend that you direct employees to his/her respective collective bargaining representative, i.e. the representative for their job classification to answer questions. This is recommended to minimize risk of unfair labor practice charges of interference.

It is a new day. If you have questions regarding this case, or any school related case or statute, please do not hesitate to give us a call. We look forward to serving your district in the coming year.

Education Law Classroom is a service to our clients, friends, and colleagues. This is not intended to be legal advice, but rather, to provide accurate information regarding education law matters. For more information regarding education law matters, please contact any member of our education law group: David G. Penn (dpenn@srnm.com), James A. Rapp (jrapp@srnm.com), Jeffrey L. Terry (jterry@srnm.com) and Dennis W. Gorman (Of Counsel). We invite and welcome all questions and comments.