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Should Public Employers Consider Issuing a Janus Notice Where a Checkoff Clause is Contained in a CBA?

As of the Supreme Court’s recent decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, state laws requiring public sector collective bargaining agreements to contain agency shop clauses that compel the discharge of employees for refusing to provide financial support to unions are deemed to violate the First Amendment.

Though as a result of Janus, public sector collective bargaining agreements may not include agency shop clauses, dues checkoff clauses remain valid on their face, but perilous in their administration. In Janus, Justice Alito hinted at requirements that may need to be met before “any . . . payment . . . may be deducted from a nonmember’s wages.” In short, “unless employees clearly and affirmatively consent before any money is taken from them” and paid to a union nonmembers may not waive their First Amendment rights.

A checkoff authorization card is usually, by its terms, revocable only during a narrow annual window—and unless an employee takes affirmative steps to revoke, the authorization automatically continues for another year. Justice Alito’s language in Janus suggests a preference for a different default approach: a public employer would be required to show “by ‘clear and compelling’ evidence” that the employee has “affirmatively” consented to the deduction of monies from his or her paycheck. In other words, when a union presents a public employer with an employee’s checkoff authorization, the public body must be persuaded by clear and compelling evidence that the employee freely and affirmatively consented to checkoff.

On its face, this showing would be required in situations where nonmembers have consented to wage deductions. Logically, the same showing of free and affirmative consent would also be required when an employee has actually joined the union and authorized deductions from wages.

Public sector unions, of course, will resist such an interpretation of Janus. The issue before the Court in Janus did not directly implicate dues checkoff, so unions will argue that any interpretation regarding checkoff represents mere “dicta.”

Nonetheless, Justice Alito’s comments provide critical insight into what may be the Court’s views on checkoff in the public sector, and may function as an invitation for another First Amendment challenge to union revenue streams. Such a challenge, though, could create problems for public sector employers themselves. As the entity honoring a potentially invalid checkoff authorization, a public agency may risk defending itself against a suit by an employee whose checkoff consent was not sufficiently “free” or “affirmative.”

Key Takeaways 

  1. Public employers may wish to consider drafting a Janus notice that explains the Janus agency shop holding, as well as its checkoff language, and then conclude the notice with appropriate questions to ensure free and affirmative consent to checkoff.

  2. Public employers may wish to consider distributing a copy of such a Janus notice

    1. to all new hires in the bargaining unit;

    2. to all bargaining unit members who have been paying agency fees to the union via checkoff; and/or

    3. to all bargaining unit members who have been paying full membership dues to the union via checkoff.

  3. Public employers may want to weigh the possible legal obligation to furnish a Janus notice, as against the predictable pushback it will experience from the union. In particular, public employers will want to examine the dues checkoff language in existing collective bargaining agreements to assess options and likely union responses.

  4. Since public employers may be subject to suit for honoring checkoff authorizations that run afoul of Justice Alito’s comments, public employers will likely want to demand “defense and indemnity” collective bargaining agreement clauses to shield themselves from suit for honoring checkoff authorizations.

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

Harrison Kuntz, Ogletree Deakins Law Firm, St Louis, Labor and Employment Attorney
Associate

Harrison Kuntz is a former National Labor Relations Board agent who possesses unique insight into the NLRB’s processes for investigating and prosecuting unfair labor practice charges and union representation elections. He now uses that experience to represent corporate clients before the NLRB in a wide variety of labor relations matters.

Harrison’s experience at the NLRB included work on the 2nd and 3rd largest elections in NLRB history, investigating allegations that different companies constituted “single” or “joint”...

314-898-4074
Robert W. Stewart, Ogletree Deakins, Employment Regulation Lawyer, hostile Work environment attorney
Shareholder

Bob Stewart is equally comfortable and experienced in the field of Employment Law/Litigation, as well as in the field of Traditional Labor Law.

Bob has extensive employment law/litigation experience, having first chaired more than 50 cases to verdict (half jury tried - half bench tried). These cases have ranged from single plaintiff discharge cases - to multiple plaintiff hostile work environmental cases - in State Courts and in several Federal District Courts. Litigators, despite their best efforts, often end up in Appellate Courts. Bob has argued approximately 25 such cases before Appellate Courts, including the Eighth Circuit, the Seventh Circuit and the Missouri Supreme Court. Throughout his career, counseling clients on virtually all aspects of the employment relationship successfully to avoid litigation, has also been a focus.

314-827-3427