On June 27, 2018, the U.S. Supreme Court announced a decision which held that public employees do not have to pay union dues/fees as a condition of employment. This is commonly referred to as the Janus decision, named after the plaintiff, Mark Janus. This decision overturned a Supreme Court ruling of 40 years (Abood v. Detroit Board of Education). The Court stated that requiring government employees to pay dues/fees as a condition of employment constituted compelled speech and association, and was a violation of the First Amendment. The impacts of the Janus decision vary depending on the status of the government employee: agency fee payers, new employees, and current full union members.
Agency Fee Payers
Agency fee payers are government employees who have opted out of paying full union dues and thus do not belong to the union, yet they are represented by the union due to exclusive bargaining agreements. Pre-Janus, they only paid the “agency fee” portion of union dues, which covered collective bargaining, contract maintenance, and grievance resolution services. The Janus ruling means that effective immediately, agency fee payers no longer have to pay even the agency fees (Janus v. AFSCME, pg. 48). Some employers (such as the University of Alaska and Anchorage School District) stopped deducting agency fees from the paychecks of agency fee payers after the Janus decision. However, not all employers have been so accommodating. Some agency fee payers may still have to take action to stop agency fees from being withheld.
The Court firmly stated that new government employees must opt in if they want to join the union and must then pay the required dues/fees. New employees do not have to join a union to take a government job. This gives newly-hired workers the freedom to decide if they want to financially support the union’s political and social agenda. All Alaska government agencies are legally compelled to immediately enforce this opt-in requirement and inform new hires of their choices. The logical first step is that government job postings and current contracts should not contain a requirement for mandatory union membership/dues.
Current Union Members
What about those government employees who are current union members? The Janus ruling states that current public employees can resign from the union immediately even if covered by a union contract. No collective bargaining agreement supersedes the constitutional right of a government employee to dissociate from the union (Janus, pg. 45). The Constitution’s First Amendment rights take precedence over collective bargaining agreements. Additionally, the Court said that government employers can only deduct dues/fees from an employee’s pay if that employee has “clearly and affirmatively” agreed to the deduction. If government employees wish to opt out of their union, they should simply notify in writing both their HR department and their union that they no longer desire union membership and instruct that membership dues/fees should no longer be deducted from their paychecks.
While the Janus decision affects all government employees and unions, as a sample of implementation status, we have surveyed the 53 school districts in Alaska. Overall, it appears as if most school districts are providing little, if any, information to their employees. Most have stopped making dues deductions for agency fee payers as is clearly stated in the Court’s decision. (Note: the requirement to pay agency fees should be immediately deleted from all current collective bargaining agreements). Additionally, most school districts are not actively providing information to newly hired and current employees regarding their right to opt out of the union. Many are relying on the unions to inform their members. This is unwise, as union-provided information may not provide the full picture of employees’ options.
We asked all school districts the following questions:
- Is the district doing anything to implement the recent Janus decision?
- Will the district continue to deduct dues from both union members and those who are only agency fee payers?
- Will the district provide the required paperwork to new employees for dues deductions as it has in the past?
- Is the district providing any information/educational material to any of its employees regarding the Opt In requirement per Janus?
- Are any of the several unions allowing employees to Opt In and not requiring Opt Out at this time?
- Do you know how many of the unions have told members of the Opt In requirement? If the unions have not informed members/nonmembers of this Opt In requirement, will the district do so? If the district will tell the members/nonmembers of the Opt In requirement, by what date will this happen?
- If an employee comes into HR and asks to complete paperwork to Opt Out of the union, will that employee get his/her dues returned retroactively?
- Are you aware if any of the unions are requiring members to Opt Out, and if so, is there a window to Opt Out?
As of August 21,2018, school districts responded as follows.
Districts requiring all employees (new and current) to opt in
- Copper River
- Cordova opt in for teacher staff
- Craig opt in for all union employees
- Delta Greely opt in for all staff
- Kake opt in certificated staff
- Nome opt in all staff
- Southeast Island
Districts requiring opt out for all employees, new and current
- North Slope Borough
- Sitka opt out annually
Districts in process of changing policy
- Anchorage (changing to current employees: opt out; new employees: opt in)
- Alaska Gateway (now opt out but working on opt in)
- Aleutian East (under review)
- Denali (now opt out but changing to opt in)
- Iditarod (now opt out but changing to opt in)
- Ketchikan (under review)
- Mat-Su (changing to opt in)
- Petersburg (opt in for teachers, changing to opt in for other staff)
Districts not responding
- Aleutian Region
- Annette Island
- Bering Strait
- Bristol Bay
- Fairbanks NSB
- Lake & Peninsula
- Lower Kuskokwim
- Lower YK
- Mt. Edgecumbe
- Southwest Region
- Yukon Kuskokwim
- Yukon Flats
Many of the school districts are very limited in their ability to digest the Janus decision and may be having a difficult time implementing the correct legal policy. Here is our guidance based on a review of the complete Janus decision and other sources.
- For those nonmembers (agency fee payers), union dues/fee deductions should be immediately discontinued. Agency Fee Payer employees have already shown they have “affirmatively consented” to opt out of the union.
- All job descriptions should be edited to remove all mentions of mandatory union membership and dues requirements.
- All contracts should also be revised to delete any reference to agency fees and mandatory union membership/dues.
- As part of the new-hire process, new employees should be informed that union membership and dues deduction are not conditions of employment. Union membership is optional and not mandatory. New hires should also be informed that even if they opt for dues deduction now, they can revoke it at any time in the future.
- Current employees who are union members should be informed that they are no longer required to belong to a union to maintain employment. They should be advised that if they want to opt out of the union, they should submit a request in writing to the HR office and complete paperwork declining dues/fee deductions. Those who opt out should also send a copy to their union.
For questions, employers and employees may contact us at 907-334-5853 or email us.