Preparing for U.S. Supreme Court’s Janus Decision on Fair Share Fees

Category: Client Update
Date: Jun 11, 2018 05:58 PM

The U.S. Supreme Court is expected to issue a long-awaited decision in Janus v. AFSCME this month.  The case will decide whether public sector bargaining unit employees can be required to pay “service” or “fair share” service fees under an agency shop arrangement as a condition of their continued employment.  While we wait for the Court to decide Janus, there are some proactive steps agencies can take to prepare for a potential decision that invalidates an agency’s authority to deduct agency shop service fees from employee wages.

1. Identify Janus’ Potential Scope of Impact Upon Your Agency

Your agency can begin by reviewing each collective bargaining agreement to determine whether any include an agency shop or other wage deduction arrangement. For those that include agency shop, review all relevant provisions, including those related to processing service fee deductions. Unions typically collect both union dues and service fees through wage deductions via the agency’s Payroll Department.  Agencies with agency shop will likely be required to make administrative changes to their payroll practices.  So you should familiarize yourself with the amount, timing, and frequency of service fee deductions.

Your agency should be ready to both immediately implement any Court-mandated changes, if any, and notify and meet and confer with any impacted unions regarding negotiable impacts of the changes as soon as possible.

2. Identify Which Provisions May Be Subject to Effects Bargaining

After this initial review, you may find it helpful to create union-specific spreadsheets or tables identifying all relevant provisions in your collective bargaining agreements, particularly if your agency has different agency shop arrangements with different unions. If the Court rules that agency shop is unconstitutional, your agency should be prepared to bargain over any negotiable effects of the decision. In preparation for these negotiations, we recommend that you review the impacted collective bargaining agreements to familiarize yourself with any additional release time, union access, and employee orientation benefits.

Finally, you may also wish to review any management rights, zipper, reopener, and/or severability clauses to determine whether any of these provisions apply. In this way, you will be ready to take the actions necessary to amend or eliminate collective bargaining agreement provisions that are contrary to the anticipated Janus decision.

3. Identify Union Dues, Service Fee, and Religious or Conscientious Objector Payers

After identifying which unions have agency shop agreements, your agency should develop a spreadsheet identifying each union’s service fee payers, and religious or conscientious objectors. This will be both the most labor intensive and absolutely critical element of your Janus preparation.

Janus will not directly impact union member employees because they are voluntarily paying union dues. However, if the Court rules that mandatory agency shops are unconstitutional, the decision will directly impact the agency’s service fee payers and any bargaining unit members who have a religious objection and who must donate to a charitable organization in lieu of the service fee.  Review the election forms in each employee’s personnel file or payroll records to determine which category each bargaining unit member falls within.  

On Janus’ effective date, your agency may be required to immediately cease all wage deductions from service payers and religious objectors.  Therefore, once you identify your employee categories, you must work with the Payroll Department to establish an action plan if the decision invalidates those wage deductions.

4. Conclusion

Public agencies should take all advance steps within their control to plan for the immediate cessation of deductions for service and religious objector fees.  They should also be prepared to immediately give notice to unions of their opportunity to engage in any necessary effects bargaining.  LCW will publish more specific guidance after the Court issues its decision in Janus.

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