An FAQ on the Supreme Court’s Recent “Fair Share” Janus Decision

On June 27, 2018, the United States Supreme Court decided Janus v. AFSCME Council 31.  In that case, the Court broadly ruled that public-sector employers and unions may not require that an agency fee, or any other payment to a union, be withheld from a non-union member’s paycheck, unless the nonmember clearly and affirmatively consents to the payment.  This decision has far-reaching consequences on public-sector employers and unions in Minnesota. This FAQ addresses the Janus decision in the context of Minnesota’s Public Employment Labor Relations Act (“PELRA”) and answers the most pressing and practical questions that we have heard from school districts, counties, and cities throughout Minnesota.

Q1:    Does the Janus ruling apply to “fair share” fees under Minnesota Statutes Section 179A.06, subdivision 3?

A1:    Yes. The Janus ruling applies to an “agency fee” or “any other payment to the union,” which includes “fair share” fees.    

 Q2:   When must public-sector employers in Minnesota stop withholding “fair share” fees from nonmembers’ paychecks?

A2:    Immediately. Until an employer receives the affirmative consent of a nonmember to collect a “fair share” fee, public-sector employers in Minnesota may not withhold such “fair share” fees from nonmembers’ paychecks. Nonmembers must affirmatively opt-in to paying a “fair share” fee before withholding continues.

Q3:    Do employers need to notify nonmembers of the Janus decision and its implications? 

 A3:    No. The employer’s only responsibility is to stop withholding “fair share” fees on and after June 27. It may be prudent, however, to inform nonmembers that the employer will no longer be deducting “fair share” fees from their paychecks.

Q4:    What should public-sector employers do if “fair share” fees have already been withheld from nonmembers’ paychecks, and the paychecks have not yet been issued?

A4:    Until June 27, it was legal to withhold “fair share” fees from nonmembers’ paychecks. For pay periods ending before June 27, 2018, it is likely that employers had the authority to withhold the full “fair share” fee, even if the paycheck is issued on or after June 27, 2018. Our recommendation is that if the pay period includes dates before and after June 27, 2018, employers should refund the prorated portion of the “fair share” fee from the period between June 27, 2018 and the pay-period end date.

Q5:    Do non-union bargaining members now fall under the employer’s personnel policies instead of the union collective bargaining agreement?

A5:    No.  They are still bargaining unit members and are still covered by the provisions of the collective bargaining agreement.

Q6:    If a nonmember, who was formerly a “fair share” employee, notifies the employer that he or she wants to become a member of the union, what are the employer’s obligations?

A6:    Prior to making any changes to this employee’s withholdings, the employer should await word from the union of the employee’s change in status. If there is a question as to whether a member has changed his or her status, the employer may reach out to the union to obtain an updated list as to those employees who have become members and consented to deduction of member dues.

Q7:    Does the Janus decision prohibit bargaining units from having an exclusive representative?

A7:    No. Nothing in the Janus decision prohibits a public-sector bargaining unit from having an exclusive representative.  In fact, the Janus decision makes clear that if a union is an exclusive representative of a bargaining unit, it must not discriminate against nonmembers with respect to collective bargaining activities, even though nonmembers will no longer be required to pay “fair share” fees. Public-sector employers likewise may not adopt collective bargaining agreements that discriminate against nonmembers.

Q8:    After the Janus ruling, are unions obligated to represent nonmembers in grievance proceedings?

A8:    Under Minnesota law, as interpreted by the courts, unions are required to represent nonmembers to the same extent as members in grievance-related proceedings. Nothing in the Janus decision alters this obligation.

Q9:    How does the Janus decision affect ongoing contract negotiations?

A9:    Public-sector employers negotiating collective bargaining agreements with unions should ensure that mandatory “fair share” provisions are eliminated. A requirement that nonmembers must pay a “fair share” fee would be unconstitutional and, consequently, invalid. Until such provisions are negotiated out of collective bargaining agreements, however, they likely would be considered invalid, unenforceable and severable from the agreement that is in effect.  Individual collective bargaining agreements may have language requiring public employers to negotiate replacement language with the union.

Q10:  Is fair share fee or union status public data?

A10:   Whether an employee is paying contract fees is public data.  Minn. Stat. § 13.43, subd. 2(a)(1).

Due to the implications of the Janus decision, it is a good idea to have any specific questions about language contained in a collective bargaining agreement, employer practices or union requests reviewed by legal counsel.

Ratwik Roszak Maloney