In Janus v. American Federation of State, County, and Municipal Employees, the U.S. Supreme Court found that a significant impingement on First Amendment free speech rights occurs when public employers require their employees, through agency fees, to provide financial support to a union.

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  • Date: November 9, 2022

SCOTUS Holds that Public-Sector Agency Fees Violate the First Amendment; California Reaction Through SB 866

California Law has long authorized school districts and unions to deduct “fair share service fees” or “agency fees” from employees’ wages who chose not to join the union. These highly controversial fees were struck down by the U.S. Supreme Court on June 27, 2018, on the basis that the fees violate the free speech rights of employees who choose not to join the union. Consequently, public employers and public-sector unions may no longer extract agency fees from non-consenting employees.

In Janus v. American Federation of State, County, and Municipal Employees, the U.S. Supreme Court found that a significant impingement on First Amendment free speech rights occurs when public employers require their employees, through agency fees, to provide financial support to a union.  In doing so, the Court rejected traditional justifications for agency fees and overturned legal precedent which stood for over forty years. 

Going forward, public employers may not deduct an agency fee or any other payment to the union from a nonmember’s wages, or otherwise attempt to collect such a payment, without the affirmative consent of the employee.  This affirmative consent must be freely given and shown by clear and compelling evidence. 

The very same day, Governor Brown signed Senate Bill 866 (SB 866) into law.  Under SB 866, an employee seeking to revoke his union membership and terminate union dues deductions, must comply with the terms previously set forth on the written authorization for deduction form and direct his request to cancel or change the payroll deduction to the union.  The union must then advise the employer of the employee’s intent.  In addition, unless a dispute arises, the employer may not require the union provide a copy of the employee’s written authorization for a payroll deduction. 

Additionally, SB 866 requires employers to meet and confer with the union concerning the content of certain “mass communications” to public employees or applicants concerning their right to join or support a union or to refrain from joining or supporting a union.  A “mass communication” is a written document, or a script for an oral or recorded presentation or message, that is intended for delivery to multiple employees.  If the employer and union cannot agree on the content of the mass communication, and the employer chooses to disseminate the mass communication, the employer must also distribute the union’s communication at the same time.

In an apparent attempt to prevent anti-union groups from gaining access to employees at new employee orientations, SB 866 requires that the date, time and place of the new employee orientation be kept in confidence, disclosed only to the employees, the union, and any vendor contracted to provide services during the orientation.

Finally, SB 866 reminds employers that they may not deter or discourage employees or applicants from becoming or remaining members of a union, from authorizing representation by a union, or from authorizing dues or fee deductions to a union.

How should school district move forward in light of the Janus decision and SB 866?

It is appropriate for school districts to immediately cease from collecting agency fees and notify impacted employees and the union of the same. Additionally, school districts should provide the union with the opportunity to negotiate the effects of the cessation of agency fee deductions.

School districts should also carefully review existing collective bargaining agreements.  Some collective bargaining agreements contain provisions requiring the district to meet and negotiate with the union in the event a portion of the agreement is declared unlawful. 

School districts should carefully consider whether to disseminate “mass communications” concerning employee rights relative to union membership.  Mass communications may include press releases and other public statements that may be seen by employees. 

School districts should also be prepared to receive Public Records Act requests and requests for information related to contact information of agency fee payers.  These requests may come from the union and/or anti-union groups.  

The short and long-term impacts of the Janus decision are difficult to predict.  However, events in other states provide useful guidance.  For example, in 2010, Wisconsin outlawed public-sector agency fees, and as a result, some studies showed public employee union membership dropped by over 60%, causing the unions to lose over 50% of their revenue, leading to a 90% decrease of funds directed toward lobbying.  These outcomes may have contributed to an increase in the number of teachers changing districts or leaving the teaching profession, and the negotiation of merit pay, longer work days, stricter evaluation procedures, and more streamlined layoff and dismissal procedures. 

It should be noted that the impact in California will depend on the California Legislature.  Although the Janus decision has eliminated mandatory agency fee deductions, the remainder of the Educational Employment Relations Act (EERA) remains intact; school districts must negotiate with the exclusive representative on matters related to “wages, hours of employment, and other terms and conditions of employment.” 

In addition, the California Education Code provides significant protection for school district employees, including relatively short probationary periods, layoff by seniority, and, for certificated staff, robust due process protections prior to suspension and termination.  These provisions will not change in the short term.

We expect public sector unions to sponsor further legislation in response to the Janus decision.  With SB 866, the Legislature and the Governor have shown a willingness to mitigate the negative effects of the Janus decision.   We will keep you informed of these and other developments affecting employment and collective bargaining.

As always, please do not hesitate to contact one of our offices if you have any questions regarding Janus, SB 866, or any related matter.