In case you missed it, the Supreme Court handed down a big decision for public sector employers. You can read more about the decision here. In short, the Janus decision tells us that a public sector employer violates the First Amendment when it requires an employee to pay union dues.
Effective immediately, public sector employers cannot deduct union fees from an employee’s wages without first obtaining the employee’s consent. This includes all fees payable to a union regardless of the language contained in the applicable collective bargaining agreement.
Public sector employers with an organized workforce should address this payroll concern immediately.
Specifically, they must obtain written consent from each of their employees before deducting funds from the employee’s wages intended to be paid to the union. At a minimum, these consents should:
- Be in writing.
- State that the employee is not required to pay union-related fees.
- State that the consent to the union-related deduction is “freely given.”
- Be signed by the employee.
- Be kept with the employee’s personnel records.
A coerced waiver will not be effective in defending against a First Amendment violation. Instead, it will be the employer’s burden to prove by “clear and compelling” evidence that the employee’s consent to the deduction was freely given.
In addition, because this consent must be freely given, employees must be permitted to revoke their consent to a union deduction. Therefore, as a best practice, employers should implement policies now that require an employee to provide written notice to the employer if she or he revokes her consent to a union-related deduction. Requiring this notice to be in writing will serve helpful later should a claim be made against the employer.
As an immediate reaction to the Supreme Court’s decision, Governor Cuomo issued an executive order intended to prohibit public-sector employers from sharing union member information. We will address this in an upcoming blog.
If you have questions about how the Janus decision impacts your business or need assistance with another employment-related concern, feel free to contact The Coppola Firm.