Page 9 - 2018 Janus Toolkit
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is able to respond to requests to change dues deductions.  Specifically, for any employee who wishes to
            change their deduction authorization (i.e., become a union member or no longer be in the union) such requests
            are required to be processed by the union and the employer must implement any changes in deductions
            based on the representation of the union as to the employee’s deduction authorization.  Unless there is a
            dispute about the employee’s deduction authorization, the union is not required to supply the employer with
            the employee’s written authorization.  It is important to recognize that the union may rely on SB 866 and
            refuse to provide employers with any tangible evidence of employee consent to union membership and fees
            deduction—like an authorization form.   It is too early to determine whether the Legislature will pass cleanup
            legislation addressing this apparent conflict between SB 866’s requirement that employers rely on a union’s
            representation as to an employee’s deduction authorization and Janus’ requirement that non-members
            affirmatively consent to any fee paid to a union or consent to union membership.

            Also, employees may have questions for administrators and management regarding the Janus decision,
            which will require careful navigation to ensure compliance with labor laws including recent amendments to the
            Education Code and Government Code under SB 866.  You may also need to work with your County Office of
            Education.  We have outlined these issues in our Implementation Checklist.


        Q.   WHAT IF I CANNOT IMMEDIATELY STOP AGENCY FEE DEDUCTIONS?
        A.  Depending on payroll processing, from a logistical standpoint it may not be possible to immediately stop
            agency fee deductions particularly for the month of June as most payrolls locked prior to the Janus decision
            being issued.  In this situation, we recommend stopping any agency fee deduction as soon as possible for only
            those employees designated as agency fee payers as of the decision’s date.  For any agency fee deductions
            made after the Janus decision, it is the obligation of the union to reimburse employees for any fees improperly
            withheld.  Many collective bargaining agreements contain language that the union will defend and indemnify
            the employer for any claims related to an organizational security provision, including agency fee deductions.
            Therefore, administrators should direct employees to contact the appropriate union for any reimbursement.


        Q.   WE HAVE A CLOSED CONTRACT (COLLECTIVE BARGAINING AGREEMENT), DO I NEED TO ASK
            THE UNION IF WE CAN RE-OPEN THE CONTRACT TO MAKE CHANGES TO ALIGN WITH THE
            JANUS RULING?
        A.  Probably not.  Many collective bargaining agreements contain a severability clause stating that if any
            provision of the agreement is held invalid by operation of law or by a court, the remaining provisions shall
            remain in full force and effect.  If your agreement does not have this language, you may need to meet
            and negotiate the agreement to align with Janus.  Also, as discussed above, given the affirmative consent
            requirement under Janus, a contract article that provides for an opt-out system, wherein employees are
            automatically in the union and dues payers unless they opt out, will need to be renegotiated.


        Q.   HOW DO I COMMUNICATE WITH EMPLOYEES ABOUT JANUS?
        A.  To begin with, there is no requirement that an employer communicate with employees about the Janus
            decision.  Any communication with employees about Janus will need to be carefully crafted in order to comply
            with new and existing labor laws.  While employers do possess free speech rights, they are not unlimited
            and have recently been further limited by SB 866.  Under SB 866, a public employer is required to meet and
            confer with the union on the content of any mass communication concerning public employees’ rights to join
            or support a union or to refrain from doing so.  If the parties are unable to agree upon content of the mass
            communication, the employer may disseminate the communication but must, at the same time, distribute
            the union’s own mass communication.





        Janus v. AFSCME Frequently Asked Questions                                                 LozanoSmith.com
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