On Wednesday, June 27, 2018, the Supreme Court ruled in Janus v. AFSCME that mandatory fair share fees for public employees are unconstitutional. As many anticipated, the Court's decision was the result of a 5-4 ruling among the justices, with newly appointed Justice Neil Gorsuch voting with the majority of the "conservative" wing of the Court. The ruling was unusual in that it overturned established precedent from the 1977 case of Abood v. Detroit Board of Education, which had permitted mandatory fair-share fees.
Below are some answers to questions that you may have about implementing the Janus decision.
Q. Can a public employer continue to deduct fair-share fees?
A. Public employers should cease making fair-share deductions for employees, effective immediately.
Q. Are there any penalties for a public employer that continues to deduct mandatory fair share fees under a collective bargaining agreement?
A. There is a risk of an employee claiming that further fair-share deductions are unlawful under wage-deduction statutes and seeking penalties.
Q. What if the union demands to bargain over the effects of the Court's ruling?
A. If the union or association demands to bargain as a result of the Court's ruling, Oregon public employers have an obligation to bargain in accordance with ORS 243.702. And public employers may have an obligation to bargain in accordance with a "severability" or "savings" clause in a collective bargaining agreement that provides a right to bargain over provisions determined to be unlawful or invalid.
Q. How does this ruling affect dues deductions for union members?
A. The Court's ruling will not affect a public employer's obligation to make deductions for union members under a collective bargaining dues-deduction provision or for Oregon employees with a deduction authorization or request form consistent with ORS 243.776 and 292.055
Q. What do we tell employees?
A. A public employer does not have to tell employees anything. Public employers must simply stop deducting mandatory fair-share fees. But any notice to employees that a public employer elects to provide should be factual and straightforward. Employees may be told that those who are not union members and have not directed paycheck withholdings to be paid to the union will no longer have mandatory fair-share fees deducted. Any such notice should not encourage employees to drop their union membership.
Q. What is the effect of the Janus ruling on private employers?
A. The Supreme Court's ruling was directed to public employment only. There is no immediate effect on private employers.
