Page 9 - 2018 Janus Toolkit LG

a more nuanced response given the recent passage of SB 866 limiting how an employer 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 memorandums of understanding 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, employees should be directed to contact the appropriate union for any reimbursement.

Q. WE HAVE A CLOSED CONTRACT (MEMORANDUM OF UNDERSTANDING), 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 memorandums of understanding 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