Page 10 - 2018 Janus Toolkit CCD

Q. DOES JANUS IMPACT COLLECTION OF UNION DUES?
A. Not in most cases. Aside from holding that involuntary agency fees are unlawful, the Court in Janus also
made clear that membership in a union (and associated deduction of union dues) will not be implied and
must be affirmatively consented to. Therefore, so long as the employee has expressly consented to join a
union or to pay union dues, employers are required to deduct union dues. Most unions use a dues deduction
authorization form that, depending on the language on the form, may already satisfy this requirement. If
an employer is unsure as to whether union members have given this affirmative consent, we recommend the
employer continue deducting dues but contact the union and ask for verification. If an employee challenges
the decision, the union is required to indemnify the public agency for defending such challenges. If the union
provides verbal verification that employees have given required written authorization we recommend that
you confirm that verification in writing to the union. While a public employer must rely on representations by
the union, it is best to confirm the representation in writing. We cannot require the union to provide a copy of
the written authorization under SB 866 absent a dispute. Although an employer could theoretically halt dues
deductions until it received evidence of affirmative consent to be in the union, this is risky and may result in a
legal challenge from the union without any required indemnification by the union in such legal action.

Q. HOW DOES JANUS IMPACT NEW EMPLOYEES WHO DESIRE TO JOIN THE UNION OR NOT?
A. In Janus, the Court made no distinction between new employees and existing employees as it pertains to
dues deductions, agency fees, and related affirmative consent. Again, if the employee chooses to join the
union, the employer must honor that decision and commence dues deduction. Similarly, if an employee
does not want to be in the union, the employer must honor that decision. For both, the employer is required,
under SB 866, to rely on the representation of the union as to the employee’s status as union member or
nonmember. The sooner the employer obtains verification from the union, the sooner it can start deducting
dues for new employees who have chosen to be in the union. It is possible that if an employer waits an
unreasonable amount of time to begin deducting dues after the union has represented that the employee is
in the union, the union may challenge such action and claim back dues are owed from the date verification of
consent was provided. However, prior to verification by the union the status of employees as union members
cannot be presumed. With this in mind, an employer might consider reaching out to the union and asking
that notification verifying an employee’s choice to be in the union or not be given to the employer as soon as
possible or within a certain time prior to the date payroll is processed after the union obtains verification from
the employee.

Q. CAN A UNION REQUIRE A UNION MEMBER TO REMAIN IN THE UNION FOR A SPECIFIC PERIOD
OF TIME?
A. The Janus decision does not address this issue. However, it appears that an employee could consent to a
commitment to remain in the union; however, a firm requirement that the employee commit to a specified
lengthy period of time may raise First Amendment questions as to whether the consent given is sufficient.
As a practical matter, this is an issue between the member and the union, as the employer must honor the
representations made by the union as to an employee’s deduction authorization status under SB 866.

Q. ONE OF OUR UNIONS JUST TOLD ME THAT THEY ARE GOING TO MAKE EMPLOYEES SIGN
CONTRACTS AGREEING TO PAY DUES FOR ONE OR MORE YEARS. IS THIS LEGAL UNDER
JANUS?
A. The terms of any membership agreement is between the union and the employee. In the event an employee
joins a union, signs a commitment for some designated period of time and then seeks to terminate
membership early, the employee may tell the employer to stop deducting dues. At that time, under Janus,
there is an argument that the employer is supposed to stop the deduction. However, under the recently signed

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