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FREQUENTLY ASKED QUESTIONS





        Q.   WHAT IS JANUS?
        A.  Janus v. AFSCME is a lawsuit filed by Mark Janus, an Illinois state employee, contesting the lawfulness of
            mandatory or involuntary agency fees he was assessed by AFSCME, the union his position was part of
            but that he opted out of joining.  Like California, Illinois has an agency fee system in place, requiring public
            employees who choose not to be part of the union to pay an “agency fee” or “fair share fee” to the union for
            the benefit of the union’s representation of the position.  This case made its way to the U.S. Supreme Court in
            2017.  A similar lawsuit, Friedrichs v. California Teachers Association, was argued before the Court in 2016 and
            resulted in a 4-4 split decision due to Justice Scalia’s death, leaving intact the propriety of agency fees.
            Prior to Janus, the case that controlled agency fees was Abood v. Detroit Board of Education, a 1977 U.S.
            Supreme Court decision holding that agency fees were constitutional.  This has been binding law until now
            as Janus overrules Abood.  The Court in Janus held that mandatory or involuntary agency fees violate
            employees’ First Amendment free speech rights.

            Because involuntary agency fees are now unconstitutional, as of the date of the Court’s decision in Janus,
            agency fee payers can no longer be charged such fees with their express consent.


        Q.   WHAT ARE AGENCY FEE PAYERS?
        A.  Agency fee payers are employees who work in bargaining unit positions who have opted out of the union.
            While agency fee payers cannot be compelled to pay for the political activities of the union, these employees
            are required to pay the costs associated with collective bargaining, grievance processing, and contract
            administration, among other things.  The amount paid as an “agency fee” is lower than the amount paid
            to become a union member.  At least 22 states, including California, have laws that provide for agency fees.
            Under Janus, these involuntary agency fee statutes are no longer constitutional.


        Q.   WHAT ARE DUES PAYERS?
        A.  Dues payers are employees who choose to join the union and pay dues to the union to cover activities,
            including the political and ideological activities of the union.  Janus does not impact the lawfulness of union
            dues, but does require nonunion members to consent to any sort of fees to the union prior to such deduction
            being made.  To the extent your collective bargaining agreement provides that employees are automatically
            union members and dues payers unless they opt out of the union, such provision will need to be renegotiated
            with the union to comply with Janus, to demonstrate employees in the union have affirmatively consented to
            union membership.


        Q.   WHAT SHOULD I DO NOW?
        A.  The most immediate concern is ensuring that agency fee deductions for 12 month employees, and those
            who are paid over 12 months, are immediately stopped for employees designated as agency fee payers as
            of the decision’s date.  This will likely require working with the union to identify all agency fee payers and
            working with payroll to stop any agency fee deductions.  Employers will then take the same steps for 10 and
            11 month employees.  It is also possible that current dues payers may no longer wish to be part of the union,
            which will require a more nuanced response given the recent passage of SB 866 limiting how an employer



        Janus v. AFSCME Frequently Asked Questions                                                 LozanoSmith.com
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