As pointed out in our June 27, 2018 Client Advisory, the Supreme Court released its decision yesterday in Janus v. AFSCME, Council 31, U.S. No. 16-466 (2018), which held that a state statute which allows public sector unions to charge non-member employees an agency service fee for activities connected with their collective bargaining activities as exclusive representative violates the First Amendment rights of those non-members. In our advisory we stated that we would provide further analysis because Massachusetts has a statute – G.L. c. 150E, §2 – which contains a requirement similar to that in the Illinois statute which was invalidated by the Court.
Two significant issues for Massachusetts employers are raised by the Janus decision. First, many employers have been making deductions for service fees from the paychecks of employees who may not be members of any of the unions which represent its employees. Second, many of those same employers are parties to collective bargaining agreements which may have provisions premised on the Massachusetts statute.
In its opinion the Court requires that employees “clearly and affirmatively consent” before service fees may be deducted from their pay because they are waiving their First Amendment right. Slip Op. at 48. This means that an employer must assure itself of two things – (1) that each employee has consented in writing to a deduction for service fees and (2) that the consent is obtained in a manner which reasonably informs the employee that it is voluntary. In cooperation with its bargaining units, the employer should therefore determine that these requirements are satisfied. Employers will also need to promptly revise payroll systems to reflect this decision.
Regarding collective bargaining provisions, the Court did not directly address those. The collective bargaining agreement involved in Janus did, however, require payment of a service fee, slip op. at 5; the Court stated its holding in broad terms – “public-sector agency-fee arrangements are unconstitutional”, id. at 6 [emphasis added]; and it referred to a collective bargaining provision which “is found to be unlawful”, id. at 46. Given this, employers should review their agreements for language which may have to be revised through discussions with their unions. In our opinion these changes should not be subject to decision or impact bargaining requirements because they do not involve the employer’s choice to exercise a non-delegable managerial right. Instead, the Court has given employers no option by deciding that such arrangements violate the law regarding employees’ First Amendment rights.
The Court indicated that unions may have options to avoid so-called “free rider” abuses, specifically mentioning the possibility of giving non-members the choice of paying a fee for union representation in disciplinary proceedings or being denied the service. Slip Op. at 17. That sort of arrangement is between the union and the employee and should not directly involve the employer.
These issues need to be worked through carefully. We are reviewing the collective bargaining agreements between our clients and their unions to determine which may need revision. In addition, we are preparing a draft template for employees to sign when indicating their decision whether or not to authorize payroll deductions for dues or service fees. The template can be discussed with the respective unions.
In the interim, if you have any questions please contact any one of our attorneys.
This update is provided for informational purposes only and should not be considered legal advice.