On June 27, 2018, the United States Supreme Court in Janus v. AFSCME held that a public employee who is not a voluntary dues paying union member may not be required to pay a service or agency fee to the union as a condition of obtaining or retaining employment. This decision invalidates M.G.L. c. 150E, § 12, which authorized payment of such fees as a condition of employment. Under Janus, if a public employee is to pay a service/agency fee the employee must first affirmatively and voluntarily consent to that fee and thereby waive his/her First Amendment right to refrain from financially supporting the union. Regardless of whether an employee pays union dues and/or agency fee (or neither), the employee is covered by the terms of the collective bargaining agreement and is represented by the union.
The following are action steps that each public employer should take:
• IMMEDIATELY STOP deducting service/agency fees from those employees who are not members of the union.
o If you have already deducted service/agency fees and have not transmitted payment to the union, return those fees to the employee.
o If you receive written notice from an employee of a desire to voluntarily consent to pay service/agency fee, you may honor that notice and deduct the amount of service/agency fee that is allowable under c. 150E, § 12.
• Any existing membership cards or other agreements by union members to pay dues through payroll deduction should continue to be honored. Under M.G.L. c. 180, §§ 17A (employees of state, county or municipality) and 17C (school teachers), deductions may be made from the pay of an employee upon written request and such authorization may be withdrawn by the employee by giving at least 60 days’ notice in writing.
• If you receive written notice from an employee who is currently paying membership dues through payroll to stop the deductions, you must do so within 60 days of that written notice.
• Both the AG’s Advisory and the DLR Q&A suggest that continued deduction of agency fees after Janus and/or failure to stop payroll deductions for other matters (including union dues) within 60 days of written notice may result in a non-payment of wages complaint with the Attorney General.
Since the Janus decision was issued, the Massachusetts Attorney General issued an Advisory and the Department of Labor Relations issued Questions and Answers (“DLR Q&A”). Please click on the links to access.
As always, if you have any questions or concerns, please contact one of our attorneys at 617-542-6789 or email us.
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