The US Supreme Court recently ruled that employers are prohibited under the First Amendment from deducting “agency fees” (i.e. dues and other union-related fees) from employee paychecks without their affirmative consent. In response to this ruling, we are recommending that public employers issue the following memo to all employees who are only making fair share payments:
Memo Re: Fair Share Deductions
As a result of the recent United States Supreme Court decision in the Janus case, public sector employers are prohibited from deducting agency fees, including fair share payments, from paychecks unless employees consent to the deduction. Because you are making fair share payments, we need to know whether you do or do not consent to the continued deduction of fair share payments from your paycheck. Accordingly, please complete the following form and either email or hand-deliver it to ____________ as soon as possible.
[ ] YES. I consent to have fair share payments deducted from my paycheck
[ ] NO. I do not consent to have fair share payments deducted from my paycheck.
Given the short period between the issuance of the Janus decision and the next payroll date, we appreciate your prompt response. If you do not respond by ______, which is when we will process payroll, we will assume that you do not consent. If, for any reason, you were unable to return this form within this deadline, please contact Human Resources.
(The employee should sign and date the bottom of the memo.)
Public employers should immediately identify those individuals. If you do not know who they are with respect to a particular union/association, you should make a PECBA information request to that union/association to provide a list of all of your organization’s employees who are fair share members. You should provide a deadline for the union/association to respond that will enable you to process payroll in a timely manner.
The memo can be delivered by hand or emailed. However, if you issue it to employees by email, you should do so in a separate communication to each employee and not send a group email that would identify to the recipients who else is a fair share payer.
To avoid PECBA interference claims, we recommend that management not proactively contact other employees to determine if they consent to these deductions. Additionally, managers and supervisors should be told:
- Please do not initiate any discussions with bargaining unit employees regarding the Janus decision.
- If an employee tries to engage in such discussions with you, please state that management does not take any position on this issue and they should direct any questions they have to their bargaining representative.
Contact one of our PRH attorneys if you have any questions.