How does the recent Janus V. AFSCME decision and California SB 866 impact your organization?

By: Frances Trant, SPHR, SHRM-SCP, Senior Consultant

As many of you know, on June 27, 2018, the Supreme Court of the United States ruled in favor of Mr. Janus, an employee with the State of Illinois Department of Healthcare and Family Services, with their decision that his free speech rights were being violated because he was forced as a non-union member-public sector employee, to pay “agency/fair share” fees in lieu of union membership fees. Because of this decision, public agency employers and unions that represent public employees can no longer mandate as a condition of employment the collection of non-member fee equivalents, usually called “agency/fair share” fees, or comparable religious objector charitable contributions, effective immediately.

The same day as the Supreme Court decision, also effective June 27, 2018, the State of California passed Senate Bill (SB) 866.  Since SB 866 is a budget trailer bill, it is considered “urgency legislation.” This means it went into effect on June 27, 2018, the day Governor Brown signed it. Therefore, it must be complied with as of that day. This article will focus on SB 866 and what organizations need to know to be in compliance with the law.

California SB 866

SB 866 clarifies employee organization membership information sharing and dues collection practices. It also confirms important public sector labor relations practices regarding access to new employee orientations (detailed in Assembly Bill (AB) 119 which mandated union access to new employee orientations effective July 1, 2017; see “Did you Know?” section at end of article for details on AB 119).

SB 866 Highlights

  • Employee organizations are authorized to request payroll deductions for its members and public employers are required to honor these requests, based solely on receiving information from the employee organization.
  • Employers are prohibited from requesting copies of union membership documents, unless a dispute arises regarding the authorization for union dues deductions.
  • The employee organization must “indemnify the public employer for any claims made by employees for deductions made in reliance on information provided by the employee organization.
  • Employers are prohibited from deterring or discouraging public sector applicants (and new employees) from becoming or remaining members of employee organizations.
  • Mass communication about employee organization membership is to be developed during a meet and confer with the employee representative organizations concerning the content of the communication. If the employer and employee organization cannot reach an agreement on the content of the communication, both parties may distribute communications to their employees/members.

What’s New?  

  • Effective June 27, 2018, California Public Sector employers are to stop automatically deducting union dues, fair share fees, or “charitable contributions” from any new employee’s Deductions do not begin until the employer receives confirmation from the employee organization that the employee is a member of the employee organization.
  • Effective June 27, 2018, public sector employers are to stop deducting existing “agency/fair share fees” for public sector employees who are not members of an employee organization, commonly called “a union” or “an employee association.”
  • If a public sector employer deducts any dues in error, based on information received from the union/employee organization, the employee association must reimburse the employer, who in turn must remit the “unauthorized” deductions to the employee. It will be up to the employee to communicate with the employee organization, which must in turn communicate with the employer to resolve inaccurate deductions. Employers cannot stop deductions until they receive information from the employee organization.
  • Any “fair share” dues/charitable contributions collected in error must be returned to the employee.
  • All new employee orientations are to be open to representatives of employee organizations and the date, time, and location made known only to employees, their employee organizations, and vendors facilitating the orientation.
  • Only the employee organizations (commonly called unions or associations) can communicate anything about the union, including the cost of union membership, to employees. Any employer and its agents, i.e., supervisory staff, who discuss anything about union membership including the cost, may be seen as discouraging union membership. This is against the law and therefore an unfair labor practice.

Six Suggested Actions for Your Organization:

  1. Meet and confer with employee organizations as soon as possible to develop joint strategies on how quickly the employer will send information (about all employees) to the union(s) and any new employees, and how quickly the employee organization will communicate membership status to the employer so that payroll deductions authorized by the employee and confirmed by the employee organization can begin.
  2. Clarify with the employee organization what date they will consider the employee to be a member and how they will explain to their members the collection of back dues if required, covering the time the employee was considered a member of the employee organization if they eventually become a union member.
  3. During the meet and confer, communication materials about membership and resulting fees should be jointly agreed upon. If both parties cannot agree on a joint message, per SB 866, employers can send communication to their employees, and the employee organization(s) will then have the right to send communication of a “reasonable” length to the employees.
  4. Mutually agreed communication is preferred so you can agree on the tone and language of the communication about this new situation.
  5. Ensure your organization is notifying all employee organizations at least ten (10) days in advance of new employee orientations and ensuring the unions/associations have time to address the audience.
  6. SB 866 clearly states “meet and confer,” albeit some employee organizations are already communicating that they want to negotiate. During the meet and confer, the end goals are to:
  • Have both parties define and commit to timelines for turning around the lists of employees who are employee organization members, so that payroll deductions can be performed in a timely and accurate manner;
  • The member deduction process needs to be agreed upon with the employee organization(s) and communicated to both existing employees and all new employees by the employee organization;
  • Ensure the employee organization will also be communicating to known employees who are currently making contributions to charitable organizations in lieu of fair share/union dues. These employee names must be provided to the employer as members or non-members of the union, that their deductions are appropriately dealt with; and
  • Communication to the charitable organizations should be agreed upon. Over the years, many charities have relied on receiving these monthly contributions and should be notified as to why contributions are ceasing.

Did You Know? Digging deeper to understand California AB 119, effective July 1, 2017

These rules highlight access to new employee orientation and employee information per AB 119. Please note the need to collect and provide personal information to the employee organizations outlined below:

  • Employers must provide exclusive representatives with: name, job title, department, work location, work, home and personal cellular telephone numbers, personal email addresses on file with the employer, and home addresses of newly hired employees, within 30 days of hire or by the first pay period.
  • Representatives of employees are to be granted exclusive access to new employee orientations.
  • The exclusive representatives are to receive at least 10 days’ notice of all new employee orientations. AB 119 requires that the structure, time, and manner of the access be determined through mutual agreement.
  • The date, time, and location of new employee orientations are to be confidential and it is prohibited from sharing the information with anyone other than employees, exclusive representative(s), or vendors contracted to provide services during the orientation.
  • The personal information for represented employees must be provided every 120-day period, except as specified, i.e., different periods agreed to by the employer and exclusive representative(s).

We have compiled this information to support our clients who must immediately implement these new requirements. Since Koff & Associates is not a law firm, we advise you to contact your legal counsel if you have any specific questions of a legal nature.

Contact us if you’d like to discuss this article and how it might impact your organization.

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