United States: What Public Employers Need To Know A Year After Supreme Court's Janus Decision

Last Updated: September 3 2019
Article by William E. Blackie

Until just last year, it was common for public sector collective bargaining agreements to require employees who elected not to belong to a union, but were still covered by the CBA, to pay "fair share" fees to the union as a condition of employment. The practice had been blessed by the U.S. Supreme Court in Abood v. Detroit Board of Education (1977), which reasoned that all employees within a bargaining unit benefit from union representation in negotiations. Therefore, it had been permissible for public employers to require payment of fees equivalent to union dues through an agreement in the CBA in exchange for that representation.

However, the Supreme Court dramatically reversed course in last year's Janus v. AFSCME decision and found the practice unconstitutional. The Court found that this amounts to the government forcing individuals to subsidize private speech with which they may disagree – a violation of their First Amendment rights. The Supreme Court found that only when there is "clear and convincing evidence" of affirmative consent from a public employee may a public employer withdraw a fair share fee; otherwise the practice must be discontinued.

The Janus decision was a striking departure from the reasoning in Abood and the decision shocked unions around the United States. While seemingly a straightforward decision, public employers, public employees, and unions are still faced with challenges, frustrations, questions, and uncertainties in handling the practical implications of the decision one year later.  

Schools Caught Up In the Confusion

Educational institutions have not been immune from these challenges. For example, highlighting just one of the many issues left unresolved by the Supreme Court is the recent case filed by Kent State University employees who resigned from their union in direct response to the Janus decision. In Hannay v. AFSCME Ohio Council 8, the employees argue that the union dues authorization and check-off cards they signed years prior to the Janus decision are now unconstitutional because they prohibit resignation from the union and discontinuance of the payment of union dues to an unreasonably limited annual 15-day window. A similar case – Smith v. AFSCME, Ohio Council 8 – was settled earlier this year with the union agreeing, among other things, to stop enforcing policies restricting dues deduction revocations to a 15-day window. However, the issue is far from settled as evidenced by the ongoing litigation involving Kent State in the Hannay case.

Several other cases filed this year, including Crockett v. NEA-Alaska and Ogle v. Ohio Civil Service Employees Association, AFSCME, Local 11, have sought refunds for public employees, including school teachers, who paid fair share fees before the Janus decision. The courts in Crockett and Ogle have rejected the claims finding that public employers may rely on a "good faith defense" for actions taken prior to Janus. However, Crockett is on appeal, and Ogle, decided just weeks ago, may also be subject to further review.

Best Current Practices

Given that these and other lawsuits will continue to be filed regarding unresolved issues after Janus, what are some best practices for pubic educational employers right now? 

  • Before discontinuing the withholding of union dues for an employee who notifies the public employer that they are no longer a union member, consult with counsel to determine whether you are in fact relieved of that duty in light of the terms of the CBA, check-off card, and other applicable documents. The interplay of these documents, as well as the rapidly developing case law in this area, all but requires you to secure legal advice before acting on such a request.
  • Since no case has yet to find Janus retroactive, neither public employers nor unions should refund fair share fees deducted prior to Janus. With respect to fair share fees improperly deducted after Janus, refunds are in order—even from the public employer should the union refuse to make the refund of the fees. The public employer would of course be entitled to reimbursement from the union, but since it is the public employer's actions that the Supreme Court found unconstitutional, you cannot escape responsibility simply because of the union's refusal to reimburse improper deductions.
  • Because many unions such as AFSCME have issued blanket demands to public education employers to bargain the "effects" of the Janus decision, it is important to consult with counsel when presented with such a demand. You will need to determine whether bargaining is required by the terms of the CBA or your state's laws. Even if not required, it may be advisable to sit down with the union in order to proactively address issues such as the union resignation matter discussed above.
  • Public employers must also continue to pay close attention to their payroll and identify employees that have fair share fees being withheld. For those employees, you must ensure that you have "clear and convincing evidence" of the affirmative consent from the employees paying the fair share fees. Counsel can assist with determining whether the consent complies with Janus.
  • Public employers should use their best efforts to work cooperatively and respectfully with the unions. Nothing in the Janus decision changed the fact that unions will continue to be the exclusive bargaining representative for all members of the bargaining unit, regardless of whether they are union members and even though they no longer may be paying fair share fees. You will want to keep the relationship with the union as positive as possible as both sides continue to adjust to the changes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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