Way back in 2018, we wrote about the Supreme Court of the United States’ decision in Janus, which held that compelling public sector employees to pay “fair share fees” to unions violates the First Amendment. As a refresher, a fair share fee is a fee that non-union members must pay to the union to cover the expenses incurred by the union in representing bargaining unit employees. For the most part, the fair share fees were paid by employees who had opted out of becoming full, dues-paying union members.
Janus made clear that fair share fees were illegal even where expressly authorized by state law. In a nutshell, SCOTUS held that fair share fees violate public sector employees’ right to free speech as protected by the First Amendment of the Constitution, because such fees forced employees to pay to support an organization that they did not wish to support. The end result is that public sector employees can opt out of union membership and cannot be forced to pay any fees to the union. However, public sector unions must still represent these “free riding” employees through collective bargaining and contract administration.
After Janus, Unions have worked hard to reduce the number of free riders, and to lock employees into voluntarily paying union dues. One approach has been to obtain a voluntary, contractual agreement to make dues payments for a specific duration and to provide a complicated revocation process. For example, a new public sector employee may be convinced to sign a dues deduction authorization, which contains an agreement to become a dues-paying union member and not withdraw union membership for the duration of the collective bargaining agreement.
When we first wrote about Janus, we indicated that there would be many questions to follow. One of those questions was, is a contractual agreement to require union dues payment for a certain period of time enforceable? Recently, in Barlow v. SEIU, Local 668, the Third Circuit Court of Appeals answered that question. And the answer is a clear yes.
In Barlow v. SEIU, Local 668, some of the plaintiffs signed new union membership applications and voluntarily authorized dues deductions from their paychecks. The authorizations were valid from year to year and irrevocable, unless the plaintiff provided written notice of revocation within a specified annual window of at least ten days and not more than thirty days before the end of the yearly period. There were other plaintiffs with different deduction authorizations in place, but you get the idea.
Essentially, the Third Circuit held that Janus did not create any new rights for employees who voluntarily elected to become union members. Janus protected the rights of those public sector employees who had never elected to pay union dues or fees of any sort to the union. Further, the Court noted that the First Amendment does not provide a right to reject or ignore contractual promises that would otherwise be enforced under state law. Thus, if a public sector employee promises to pay union dues for a certain period of time, Janus will not relieve those employees of that obligation. Further, Janus will not serve as an “out” if the employee has not effectively revoked his or her authorization for dues deductions.
What are the lessons here? Public Sector employees who are asked to sign union dues deduction authorization contracts should be sure to read the fine print and understand exactly what they are signing. In addition, public sector employers should consider provisions in collective bargaining agreements that govern dues deductions from employee paychecks, and also understand whether a collective bargaining agreement does, or does not, impact the rights of public sector employees to revoke authorization of dues deductions.
