On June 27, 2018, the United States Supreme Court (“Court”) issued its ruling in Janus v. American Federation of State, County and Municipal Employees, Council 31, et al. (“Janus”), holding that state laws requiring public sector employees who are not union members to pay “agency fees” were unconstitutional.
Prior to Janus, public sector employees who chose not to join a union could be charged mandatory “agency fees.” However, the Court in Janus held that requiring nonunion members to pay agency fees forced them to subsidize the private speech of others (i.e., the unions’ speech) and that this obligation violated their First Amendment rights.
With the decision in Janus, nonunion members may no longer be required to pay agency fees. Neither agency fees nor any other payments to a union may be deducted from a nonunion member’s wages, nor may any other attempt be made to collect such a payment, unless the employee clearly and affirmatively consents to such payment. In other words, public employers may not deduct agency fees from a nonunion member’s pay without prior written authorization from such employee.
Given the Court’s decision in Janus, municipalities should immediately cease deducting any agency fees from any nonunion member employee’s pay unless they have written authorization from the employee. Likewise, municipalities should also immediately cease deducting any union dues from any employee’s pay unless they have a dues deduction authorization form signed by the employee.
It is our understanding that many municipalities may not have copies of dues deduction authorization forms or agency fee deduction authorization forms for their employees. As such, we advise all municipalities to contact each of their unions (Local Union President) and request a list of all employees in their bargaining units who are, and who are not, members of their unions. In addition, municipalities should also request that each of their unions provide copies of dues deduction authorization forms for each union member and copies of agency fee deduction authorization forms for each nonunion member and advise them that union dues and/or agency fees will not be deducted from the pay of any union and/or nonunion member for whom such documentation is not provided.
In addition, in light of the Janus decision, it should be noted that the NYS Legislature recently passed new amendments to the NYS Civil Service Law concerning union dues. Such amendments provide that:
- A public employer shall commence making dues deductions as soon as practicable, but no later than 30 days after receiving a signed authorization card.
- Such dues must be transmitted to the appropriate employee organization within 30 days of deduction.
- Authorization cards may be submitted by emails or other electronic means.
- The right to such membership dues deduction shall remain in full force and effect until:
- An employee revokes membership in the employee organization in writing; or
- The employee is no longer employed by the public employer. If the employee returns within 1 year, he/she will automatically have their membership reinstated.
- Should the employee who signed an authorization card be removed from payroll or placed on any type of leave of absence, the employee’s membership in an employee organization shall be continued upon that public employee’s return.
- Within 30 days of an employee’s hire/rehire date, or promotion/transfer to a new bargaining unit, the employer must notify the employee organization of his/her name, address, job title, employing agency, department/operating unit, and work location; and
- Within 30 days of providing such notice, an employer shall allow a representative of the employee organization to meet with the employee during his/her work time without charge to leave, unless otherwise specified in a CBA.
- Such meeting must be scheduled in consultation with a representative of the employer.
Should you have any questions, please contact Jaclyn G. Goldberg or Lance H. Klein.
