January 28, 2019
JANUS
Continued from page 1
to work together to provide optimal learn-
ing conditions in our schools and help
our students succeed. While Janus prevents
unions from collecting fair share fees from
nonmembers without their consent, the case
does not otherwise alter employee rights
or impact our ongoing efforts to main-
tain strong and collaborative relationships
between ACSA and CTA members.
Frequently Asked Questions
What was the issue in Janus?
Mark Janus, a public employee in Illinois,
claimed that a statute that allowed his
union to collect “fair share” or “agency” fees
from him violated his First Amendment
rights. Mr. Janus had chosen not to become
a member of the union that represented
him and his colleagues in the workplace.
Although he had declined union member-
ship, under state law and United States
Supreme Court cases decided prior to
Janus, he was obligated to pay a fee to the
union for the union’s collective bargaining
and related representational activities. He
was not obligated to subsidize the union’s
political activities (which was a separate,
optional fee). Nevertheless, Mr. Janus con-
tended that payment of the agency fee
itself – sometimes called the “fair share” fee
– was unlawful “compelled speech” under
the First Amendment of the United States
Constitution.
What was the Supreme Court’s ruling
in Janus?
The U.S. Supreme Court ruled that
the Illinois statute violated the First
Amendment by compelling nonmembers to
pay a fee to the union. In reaching this deci-
sion, the Court overturned four decades of
law, particularly the Court’s prior decision
in Abood v. Detroit Bd. of Ed. The majority
in Janus ruled that a public employee union
may no longer collect fair share fees from
a nonmember without the nonmember’s
affirmative consent.
Did the Janus decision affect dues
paid by union members, as opposed
to fair share fees that were paid by
nonmembers?
No. Membership dues were not at issue
in the Janus case. Janus only decided wheth-
er the involuntary payment of fair share
fees by nonmembers was permissible, and
the case held that it was not. The Janus
decision itself does not impact any agree-
ments between a union and its members
regarding the payment of union dues. Those
agreements remain an internal arrangement
between the union and the employee, and
union membership remains a voluntary
employee decision.
Does Janus require unions to re-sign
existing union members?
No. As noted above, Janus does not
involve dues paid by members to their
unions. Membership dues should not be
confused with fair share fees. Union mem-
bership agreements, existing membership
cards, or other agreements by union mem-
bers to pay dues are unaffected by Janus
and should continue to be honored, partic-
ularly under a new California law enacted
through SB 866. The Janus holding does
not require current union members to
reauthorize dues deductions or to sign up
for membership again.
The Janus decision only means that
public sector employers cannot deduct, and
unions cannot collect, fair share fees from a
nonmember’s wages without the nonmem-
ber’s clear and affirmative consent.
So does Janus have any effect on
the way that dues are collected from
union members?
No. Janus does not address the collection
of dues from union members. The deci-
sion also does not involve or affect payroll
deduction methods.
How should the employer and union
cease the collection of fair share
fees?
School districts and unions should iden-
tify all nonmembers (if not yet done) and
share that information with each other as
soon as reasonably possible to ensure that
fair share fees are no longer being deducted
from nonmembers’ wages. Many admin-
istrators and CTA chapters have already
worked hard together to reconcile their fee
payer lists and to confirm the identities of
nonmembers for whom fees should no lon-
ger be deducted.
District payroll and/or business person-
nel should be handling internal district
protocols and logistical steps needed to
cease payroll deductions for former fee pay-
ers, if not already done so. Further, districts
and unions should discuss with each other
protocols for handling and reimbursing any
fair share fees that might be inadvertently
deducted from nonmembers’ pay after June
27, 2018.
Has CTA reimbursed any fees to for-
mer fee payers?
Yes. CTA established an escrow account
for the purpose of refunding to nonmem-
bers any fees that were collected prior to
June 27, 2018, which were intended to cover
the period from June 27 through the end
of the CTA membership year on August
31. Due to the absence of summer payroll
periods in many districts, CTA and some of
its affiliates collected fees prior to June 27
for nonmembers to cover July and August.
CTA has sent refund checks to all those
nonmembers for whom CTA has addresses,
reimbursing them for any fees that covered
the period June 27, 2018 through August
31, 2018, with interest.
Are unions still required to represent
nonmembers in matters within the
scope of the union’s representational
functions?
Yes. Janus did not undermine the fun-
damental principle of exclusive representa-
tion by a union or the union’s Duty of Fair
Representation (DFR) to its members. The
Educational Employment Relations Act
(EERA) still requires an exclusive represen-
tative to fairly represent all members of its
bargaining unit with regard to bargaining
and enforcing labor contracts, regardless of
whether the unit member has joined the
union.
Separately, unions can provide services to
union members that are outside the DFR.
Unions are still permitted to restrict such
extra-contractual services and members-
only benefit programs to their members.
Does Janus require us to renegotiate
our labor contracts?
No, not in most cases. Most labor con-
tracts contain a “severability” clause, which
maintains the validity of the rest of the con-
tract even if one provision has been voided
by law. After Janus, fair share fee language
in contracts is void and unenforceable. So
long as the contract has a severability clause,
the remainder of the contract remains valid.
Eventually, employers and unions likely will
want to meet to negotiate the removal of
any potentially void language.
If an employee asks the school dis-
trict to drop the employee’s union
membership, how should the district
respond?
The school district must refer the
employee to her or his union. The union is
obligated to process the employee’s request
within a reasonable time. Remember that
under current state law, the employer may
not deter or discourage job applicants or
employees from becoming or remaining
members of an employee organization,
withdrawing membership from the employ-
ee organization, or otherwise interfere with
an employee’s decision regarding union
membership. Thus, if an employee asks the
district to drop her/his union membership,
the employer should refer the employee to
the union and inform the employee that the
request must be directed to the union.
How does SB 866 impact the payroll
deduction process?
Senate Bill 866 ( June 2018) amended
several statutes regarding payroll deduction
of union member dues. Current laws allow
employees to authorize payroll deduction
of dues by notifying their union in writing.
This writing may be a signed union card or
an electronic writing, signature or similar
recording consistent with California law.
These payroll authorizations must be main-
tained by the union, not the employer.
SB 866 clarifies that an employee’s revo-
cation of a dues deduction authorization
is governed by the terms of the employee’s
authorization document with the union.
As with requests to revoke membership, an
employee’s request to revoke a dues deduc-
tion agreement must be directed to the
union.
Employers must process payroll dues
deductions for all employees whom the
union reports as having written authoriza-
tions. The employer relies on the union’s
list of employees who have authorized dues
deductions. Unions are required by statute
to indemnify employers against claims that
might arise regarding the employer’s reli-
ance on the union’s lists.
What if an employee disputes that
she or he authorized payroll deduc-
tion of dues?
Consistent with SB 866, if an employee
disputes the authorization for deduction of
union dues from her/his pay, the district
and union should communicate about the
dispute. Under SB 866, employers may
not require a union to submit copies of
employees’ written authorizations for pay-
roll deduction, unless a dispute arises about
the existence or terms of those authoriza-
tions. If a dispute exists and if requested
by the district, the union should produce
a copy of the employee’s dues deduction
authorization to both the employee and the
district.
If the employee signed a dues deduc-
tion authorization but now wants to revoke
it, then the revocation request must be
directed to the union and not the district.
The union will assess whether the dues
revocation request complies with the autho-
rization agreement. If the union determines
the revocation request is valid, the union
should promptly notify the district that
payroll deductions should cease for that
employee and the district should promptly
cease payroll deductions of the employee.
CTA and its chapters will make every rea-
sonable effort to notify districts promptly
when they process and confirm revocations
of employees’ agreements to pay dues via
payroll deduction.
How does SB 866 impact a pub-
lic employer’s communications with
employees about Janus and related
matters?
SB 866 also adds a new section to the
EERA that requires an employer to meet
and confer with the exclusive representative
before sending any mass communications to
employees or applicants about their rights
to join, support, or refrain from joining or
supporting a union. If the school district
and union cannot agree on the content of
the communication and the school district
wishes to proceed with its communication,
then the district must send a message of
reasonable length from the union along
with the employer’s mass communication.
This new provision does not affect com-
munications on other subjects.
How does SB 866 impact
employee orientations?
new
In 2017, AB 119 established rights for
exclusive representatives to attend new
employee orientations. SB 866 amended
AB 119 by prohibiting an employer from
disclosing the date and location of new
employee orientations to anyone other than
the employees, the exclusive representative,
and vendors that are contracted to provide
services at the orientation. School districts
should be aware of this new restriction
when responding to any inquiries from
third parties (including those through
CPRA requests).
CPRA reminders post-Janus
and SB 866 FAQs
Some outside organizations that urge
union members to drop their union
membership are sending requests to
districts under the California Public
EDCAL 3
Records Act, seeking various infor-
mation about public employees. How
should those requests be handled, no
matter who is requesting the infor-
mation?
CPRA requests for employee contact
information (or other information about
employees) must be analyzed on a case-by-
case basis, often in consultation with legal
counsel. Privacy rights, California statutes,
court case law, school board policies, and the
particular facts of the request are all relevant
to ensuring the proper response.
A school district is only required to
provide records that exist and are in its pos-
session. A district is not required to create
materials to respond to a CPRA request.
In some circumstances the information
requested may exist but is exempt from
public disclosure. For example, employees’
home addresses, home telephone numbers,
birth dates, personal email addresses and
social security numbers are not subject to
public disclosure under the CPRA. Federal
and state constitutional privacy rights also
protect an employee’s choices to affiliate
with private organizations, and disclosure of
union affiliation would violate the associa-
tional right of privacy of school employees.
On the other hand, information such as
the employee names, departments, job title,
hire and separation dates, and compensation
information are generally disclosable.
Beyond these general rules, districts and
employees should carefully evaluate the
circumstances of a particular CPRA request
to determine an appropriate response, and
work with their legal counsel as appropriate.
Some outside groups have been
sending emails to employees, urg-
ing them to drop their union mem-
bership. What is an appropriate
response?
First, district staff should understand
they are under no obligation to respond to
or engage with these senders. Many school
districts have email systems which allow
individual users to block unwanted emails.
If staff do not want to receive these emails,
they can block the sender. School districts
are encouraged to remind staff how to do
this.
If staff receive similar or identical emails
from outside organizations that are unwant-
ed or disruptive, regardless of its content,
they should also notify their school district’s
IT department. Most school districts also
have the ability to block or filter out emails
that are unwanted or disruptive.
Second, districts may consider review-
ing their computer use/email policies that
disallow “spam” emails or impose other
content neutral restrictions on email use or
outside email solicitations. School district
email systems and computer networks are
not designed to be “public forums” that are
open and available to the public at large.
The purpose of these systems is to support
and facilitate each district’s educational
mission. Spam emails can be both annoying
and responsible for virus proliferation on
computer networks. For these reasons, some
districts have blocked or “filtered” spam
emails from outside organizations not based
on content. Districts should consider filter-
ing repeated emails which are disruptive to
district business, a drain on their servers and
possibly harassing.
Aside from invalidating fair share
fee arrangements, did Janus alter
any other rights or obligations of
public sector employers, unions or
employees?
No. While Janus is a significant depar-
ture from prior law with regard to nonmem-
ber fair share fees, the decision does not
alter other rights and obligations of public
sector employees and employers under state
law.
We hope that the information above
is useful as we navigate a changed legal
landscape. ACSA and CTA look forward to
continuing to work together to support our
students throughout California.
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