Should Public Employers Consider Issuing A Janus Notice Where A Checkoff Clause Is Contained In A CBA?

As of the Supreme Court's recent decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, state laws requiring public sector collective bargaining agreements to contain agency shop clauses that compel the discharge of employees for refusing to provide financial support to unions are deemed to violate the First Amendment.

Though as a result of Janus, public sector collective bargaining agreements may not include agency shop clauses, dues checkoff clauses remain valid on their face, but perilous in their administration. In Janus, Justice Alito hinted at requirements that may need to be met before "any . . . payment . . . may be deducted from a nonmember's wages." In short, "unless employees clearly and affirmatively consent before any money is taken from them" and paid to a union nonmembers may not waive their First Amendment rights.

A checkoff authorization card is usually, by its terms, revocable only during a narrow annual window—and unless an employee takes affirmative steps to revoke, the authorization automatically continues for another year. Justice Alito's language in Janus suggests a preference for a different default approach: a public employer would be required to show "by 'clear and compelling' evidence" that the employee has "affirmatively" consented to the deduction of monies from his or her paycheck. In other words, when a union presents a public employer with an employee's checkoff authorization, the public body must be persuaded by clear and compelling evidence that the employee freely and affirmatively consented to checkoff.

On its face, this showing would be required in situations where nonmembers have consented to wage deductions. Logically, the same showing of free and affirmative consent would also be required when an employee has actually joined the union and authorized deductions from wages.

Public sector unions, of course, will resist such an interpretation of Janus. The issue before the Court in Janus did not directly implicate dues checkoff, so unions will argue that any interpretation regarding checkoff represents mere "dicta."

Nonetheless, Justice Alito's comments...