What Now? Public Employer Obligations After Janus

Last week, the U.S. Supreme Court issued its landmark decision in Janus vs. AFSCME.  The opinion prohibits public employers from collecting fair share fees from employees who have refused to join a union. In the aftermath of Janus, public employers need to be taking immediate steps to stop any such deductions.  They also need to prepare for current union members who may seek to revoke any authorization that they had previously provided.

While there is no direct Delaware authority on this point, it is likely that the Delaware Public Employment Relations Board (“PERB”) will follow federal law developed for private employers. As a result, the language of the authorization of deducted dues will control employers’ next steps, and that language will not make it easy for union members seeking to stop deductions.

Many authorization cards are “irrevocable” for one year, or upon the termination of the applicable collective bargaining agreement. Some also limit revocation to a short, 10- or 15-day window and require the revocation to be in writing and sent by certified mail.  The failure to follow the EXACT terms of the authorization will certainly be challenged by unions.

Earlier this year, the Sixth Circuit Court of Appeals backed a union and private sector employer who continued to deduct dues from a group of employees who attempted to resign from the union and stop paying dues. The reason?  The employees used regular mail instead of certified mail to send in their revocations.  Remember, dues are the lifeblood of unions, and any attempt to cut them off will be vigorously opposed.

Public employers can prepare now for efforts by employees to stop dues deductions. Employers should become familiar with the terms of the authorization signed by employees.  If a union member demands that dues deduction stop, the employer should provide the employee with a copy of the authorization that he or she signed and not stop deductions until the union has had adequate time to respond to the employee’s demand. It is also a good time to make sure that employers actually have authorizations for all of their employees.  If authorizations are missing, employers should reach out to the union to verify that a valid authorization exists.  Again, deductions should not stop until the status of the authorization is determined.