What to Do About Union Dues? Janus, SB 866 and Charter Schools
A recent landmark decision by the U.S. Supreme Court, Janus v. AFSCME, struck down California state laws that force public employees to pay even a percentage of union dues on the grounds that this “violates the free speech rights of nonmembers by compelling them to subsidize [the union’s] private speech on matters of substantial public concern.” As a practical matter, the Court’s ruling empowers employees who were previously held hostage to opt out of paying any union dues. This could deal a significant blow to union coffers.
Anticipating the Court’s decision, the California legislature passed legislation, effective immediately, giving unions the almost exclusive ability to communicate with and on behalf of employees who oppose them. Known as SB 866, the bill requires that “public school employers”—including charter schools so designated by their charter—with unions do the following:
1. Process written authorizations from employees; take the union’s word for it. You must honor the terms of an employee’s written authorization for payroll deductions. If the union certifies it will maintain employee authorizations, you must also process their requests for deductions on behalf of employees without proof of the employee’s authorization, unless there is a dispute. (Ed. Code 45060(e), (f).)
2. Let unions manage requests to cancel or change payroll deductions. Employee requests to cancel or change authorizations for payroll deductions must be directed to the union. You must then rely on information provided by the union regarding whether employees have cancelled or changed their authorization to deduct union dues. The law makes no exception even if you have notice of a dispute. (Ed. Code 45060(e).)
3. Don’t unilaterally communicate to employees regarding union support. Before communicating with more than one employee or applicant concerning their rights to support a union (or not), you must first try to reach an agreement about the content of the message with the union. If you and union cannot agree, you must simultaneously distribute a communication from the union. (Gov. Code 3552, 3553.)
4. Keep new employee orientations confidential. Last year AB 119 mandated that you provide the union with notice of and access to new employee orientations. SB 866 now prohibits disclosure of the date, time, and place of the orientation to anyone but employees, the union or certain vendors. (Gov. Code 3556.)
If it seems like SB 866 exposes charter schools to liability for making unauthorized payroll deductions, you’re not wrong. Labor Code section 224 permits an employer to withhold from an employee’s wages union dues authorized by a collective bargaining agreement only when “expressly authorized in writing by the employee….” SB 866 now makes the union the gatekeeper of that authorization, although the union is at least required to indemnify schools against any employee claims for deductions made in reliance on information it provides. (Gov. Code 45060(e), (f).)
Do you have a union? If the answer is yes, and your union hasn’t reached out to halt all nonmember deductions until further notice, you can request certification before continuing to deduct dues from nonmember payroll. If no, you are less restricted in what you can say to employees about their newly affirmed rights.
Feel free to contact a member of our Education and Charter Schools practice group if you have any questions about your union or how the new law might affect your school, including what you can say to employees and what you can’t.
Tracie E. Stender is a member of Procopio's Education and Charter Schools practice group. She represents public agencies and charter schools in all facets of litigation and on a range of governance and operational matters, including contracting, financing and compliance. Tracie’s practice also includes labor and employment issues from collective bargaining and workplace investigations to defending claims for wrongful termination. Tracie has also helped clients issue over $80 million dollars in bonds and private financing and has assisted clients in obtaining and maintaining funding under federal programs including school nutrition (NSLP), early childhood education (Head Start) and rural development (USDA) programs. Informed by her experience as a litigator and her broad range of practice, Tracie takes care to provide her clients with comprehensive and practical advice.