State response to Janus v AFSCME

9/30/2019

Overview

In 2018 the United States Supreme Court ruled in Janus v. AFSCME that public sector employers could not—as a condition of employment—withhold wages of union nonmember employees to pay collective bargaining agency fees to the representative union without affirmative consent from the nonmember employee.

From the Supreme Court’s opinA gavel is pictured in the foreground with law books in the background.ion:

“Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”

The court’s assertion that “such a waiver cannot be presumed” has been interpreted by many to mean that the default option (ie. implied action when no preference is indicated by the employee) for nonmembers must be that no agency fees can be withheld.

Legislative Response

Multiple states have considered legislation related to the practice of public employers withholding fees from the wages of union nonmember employees, to comply with the court’s ruling.

Enacted legislation

States seeking to reduce barriers to public sector unionization have passed legislation requiring public employers to allow employee organizations with exclusive representation access to new employee orientations and lists of new hires and current employees with the employees’ contact information. California was the first with a bill passed prior to the decision from the Supreme Court. Maryland passed similar legislation for state and higher education employees following the decision. New Jersey, Washington and Massachusetts have also passed similar legislation.

California’s AB 1455 also requires employee information records be made public to certain entities including exclusive representatives while also exempting some information from release to other organizations.

Additionally, California’s SB 285 prohibits public employers from deterring or discouraging employees from joining or remaining in an employee organization and Hawaii passed a bill affirming the right of the state to deduct union dues pending authorization by the employee.

Finally, Delaware passed legislation limiting the timeframe when a public employee can request membership in a public employee union be revoked.

Failed legislation

Massachusetts considered legislation that would allow public employers to refuse to provide payroll deduction for union membership dues. Tennessee and Maine considered similar legislation.

Illinois also considered legislation that would remove provisions for agency fees and would allow public employees to bargain independently of the unions while New Hampshire proposed legislation that would make collective bargaining agreements requiring dues illegal.

Additionally, Ohio also considered a bill that would remove requirements to join a public employee union.

Pending legislation

States are still looking at ways to address the impacts and ramifications of the court’s decision.

Oklahoma has pending carryover legislation regarding payroll deductions and elections of employee organizations for public employees while New York is considering legislation to streamline the collection of union membership dues.

Technical Guidance

Outside of legislation jurisdictions in Washington and elsewhere have instituted the practice of notifying nonmember employees of the ruling to explain its implications and offer an opportunity for affirmative consent. Nonpartisan organizations like the Society for Human Resource Management and others have suggested giving clear notice of the ruling to all nonmember employees as a best practice. New York and Vermont have issued guidance on agency compliance with the ruling.

As more states continue to make efforts to comply with the ruling the shifting landscape of public sector unions will continue to evolve.

Loryn Cesario is a policy associate in the Labor, Employment & Retirement Program at NCSL.

Additional Resources