FAQs answered for districts on Janus vs. AFSCME and SB 866

July 16, 2018 Staff Writer

During the final week of June, the U.S. Supreme Court ruled in Janus v. AFSCME that requiring agency fees/fair share dues is a violation of the First Amendment and are unconstitutional. The decision has generated a tremendous amount of media attention and no doubt discussion and questions in your organizations.

ACSA, with our Legal Partners, comprised of Atkinson, Andelson, Loya, Ruud and Romo, Fagen Friedman & Fulfrost, and Lozano Smith has updated our Frequently Asked Questions document to assist school leaders moving forward. This information is intended to guide and expedite your work, and not to replace the advice provided by your legal counsel.

In anticipation of the Janus ruling, unions in California rushed Senate Bill 866, a budget trailer bill, to limit the impact of the decision on public employees. SB 866 has been signed by the governor and takes effect immediately. ACSA anticipates confusion implementing SB 866 and how this legislation will intersect with the Janus decision.

“In the face of change, there can be chaos before there is clarity,” said ACSA Executive Director Wes Smith in an email to the field. “I suggest you consider reaching out to your union leaders to offer your assurance that you will work with them to develop and manage a process that works for the employees and district.”

Because school districts have a break in the work year that impacts how payroll is processed, only employees who are paid over 12 calendar months will likely be impacted in the short term, providing a little time to work out details for the majority of your employees with your unions and legal counsel.

Frequently Asked Questions

Q: Why haven’t I heard about SB 866?

A: SB 866 was amended at the last minute as a budget trailer bill allowing it to be fast-tracked through the Legislature and signed by the governor on June 27.

Q: When does SB 866 take effect?

A: Because SB 866 is a budget trailer bill and was signed by the governor, it is now the law.

Q: Does the new legislation override the Janus decision?

A: State law cannot override a U.S. Supreme Court decision holding a law unconstitutional. The Janus decision calls into question the constitutionality of SB 866. Janus examined required union dues, while the legislation provides for employee written authorization to collect union dues. As discussed below, there is an inconsistency between the language in SB 866 and the Janus decision requiring districts to make a decision as to how they want to proceed.

SB 866 authorizes, among other things, public sector unions to request payroll deductions and requires public employers to honor those requests without reviewing a copy of the individual authorization. It is not clear at this time whether that satisfies the Court’s “clear and compelling evidence” standard. For now, however, SB 866 is the law in California.

Q: Does SB 866 impact a public employer’s ability to communicate with employees about the Janus decision?

A: Yes. Any “mass communication” you send to your employees or applicants concerning their rights to join/support or refrain from joining/supporting their union requires a meet and confer process with the applicable union. If agreement cannot be reached on the contents of the communication, the employer may send out the mass communication, but must also distribute at the same time the union’s own mass communication to public employees.

Any mass communication concerning the Janus decision will likely fall within this provision and requires the parties to attempt to craft a mutually agreeable content, or follow the alternate process of distributing two sets of mass communication: one from the employer and one from the union. Please keep in mind, this provision will have a significant impact on public employer mass communications beyond discussion of the Janus decision.

Q: What can/should/cannot we say to employees about Janus and SB 866?

A: It is critically important that board members and administrators, as representatives of the school district, be aware of the limitations SB 866 places on communications regarding union participation and tailor any comments or responses to questions accordingly. If an employee asks you questions about the Janus case, the recent legislation, or whether to join or stay in the union, we strongly recommend that you refer them to their labor organization for answers to those questions. We also recommend that you be mindful of any comments that you may make that could be construed as deterring or discouraging union participation.

Q: What about communication with the public?

A: Although SB 866 does not on its face refer to mass communications to the public, a public school employer should be wary of communications made to the public at a board meeting or on the district’s website as these may still be construed as mass communications necessitating the meet and confer process, since school districts know that employees attend board meetings and frequent the district’s website. For these types of communications, the same mindfulness should be exercised as when communicating with employees about the Janus decision and related issues.

Q: Which employees does Janus cover?

A: Janus covers any and all public employees who are in positions represented by a union and who elect not to be union members. The most immediate impact is on public employees who were agency fee payers prior to June 27, 2018. Agency fee payers are employees operating under an agency fee system who have chosen to opt out of the union. Through agency fees, these employees were required to pay the cost associated with collective bargaining, grievance processing, and contract administration, among other things. Prior to Janus, agency fee payers could not be compelled to pay for the political activities of the union. After Janus, all agency fees or other payments by non-members to a union violate the First Amendment of the U.S. Constitution, unless the employee affirmatively consents to pay.

Q: Does Janus trigger an obligation to negotiate?

A: No, in most cases. Most collective bargaining agreements contain a severability clause providing that if any provision of the agreement is unlawful it is essentially “severed” from the agreement, while the other provisions remain in full force and effect. Therefore, any language addressing agency fees in an agreement conflicting with Janus is null and void, while the rest of the agreement would remain intact. However, districts and unions may have to meet and negotiate over the impacts of the Janus decision on other areas of collective bargaining agreements.

Q: What will the effect of Janus/SB 866 be on hiring, collective bargaining/due process?

A: Many of the effects of Janus at the bargaining table are not known at this time. As to hiring, SB 866 makes confidential the date, time and location of employee orientations, aside from notifying the employees attending the orientation, the exclusive representative, and vendors providing services at the orientation.

Q: How should I prepare my payroll department to handle dues deductions and requests to stop them?

A: Immediately alert your district’s payroll and business teams about the case and legislation. Since the June payroll has already locked, determine the implications on processing payroll in July and subsequent months. Establish internal protocols with regard to receipt and implementation of written notifications from union officials regarding initiation and cessation of union dues and agency/service fee deductions, including processing of any retroactive reimbursements. If necessary, consult with business services of your county office of education.

Q: When does payroll stop agency fee deductions in light of the Janus ruling?

A: Under Janus, “(n)either an agency fee nor any other payment to the union may be deducted from a nonmembers’ wages, nor may any other attempt be made to collect such a payment unless the employee affirmatively consents to pay.” SB 866 states that dues or other payments to the union must be deducted unless the union notifies the district that the employee has revoked consent for such deductions. SB 866 cannot overrule Janus, but it does raise questions for making these deductions. Because of the inconsistency, districts should work with their legal counsel to determine how to proceed with stopping agency fee deductions.

Q: What is the process if a union member notifies us that they would like to opt out of paying dues?

A: Based on the language of SB 866, if an employee notifies the district of his/her desire to opt out of paying dues/discontinue membership in the union, district staff must refer the employee directly to the union in order to work out termination of union membership/agency fee deductions. The district cannot unilaterally implement such employee request. Confirm with union leaders to whom employees should be directed and how, and communicate the process to all payroll, business, and human resources department staff. While Janus dealt specifically with agency fees, there is broad language noted above that seems to prohibit any deduction for union payments without the employee’s express consent. Under SB 866, the employee provides the union, not the district, with their revocation and the district is to rely on the union’s information that the deduction was properly cancelled or changed. Again, because of the inconsistency between Janus and SB 866, you should work with counsel as these issues arise.

More FAQ on the ramifications of the Janus decision from ACSA and Legal Partners Atkinson, Andelson, Loya, Ruud and Romo, Fagen Friedman & Fulfrost and Lozano Smith will follow in the next EdCal.


Checklist offered for new laws on agency fees

There are a lot of questions being asked in light of the passage of the budget trailer bill, Senate Bill 866, and the recent decision by the U.S. Supreme Court regarding Janus v. ASFCME.

The Janus decision declared that requiring employees’ pay agency fees is a violation of their First Amendment right of free speech. SB 866 places limitations on school districts regarding payroll, mass communication and Public Record Requests.

Changes to payroll are significant. In order to help you navigate the changes ahead, ACSA has partnered with the California Association of School Business Officials and the law firm of Fagen, Friedman & Fulfrost to provide a Payroll Check List regarding the elimination of agency fees as required under the Janus decision.

The checklist will let you know who is responsible for what in 12 different areas regarding payroll: the payroll department, business services, HR/superintendent, or unions.

The checklist can be accessed at http://bit.ly/2L5khAx.

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