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 provide critical insight into what may be the Court’s views on checkoff in the public sector, and may function as an invitation for another First Amendment challenge to union revenue streams. Such a challenge, though, could create problems for public sector employers themselves. As the entity honoring a potentially invalid checkoff authorization, a public agency may risk defending itself against a suit by an employee whose checkoff consent was not sufficiently “free” or “affirmative.”

Key Takeaways 

1. Public employers may wish to consider drafting a Janus notice that explains the Janus agency shop holding, as well as its checkoff language, and then conclude the notice with appropriate questions to ensure free and affirmative consent to checkoff.

2. Public employers may wish to consider distributing a copy of such a Janus notice

   1. to all new hires in the bargaining unit;

   2. to all bargaining unit members who have been paying agency fees to the union via checkoff; and/or

   3. to all bargaining unit members who have been paying full membership dues to the union via checkoff.

3. Public employers may want to weigh the possible legal obligation to furnish a Janus notice, as against the predictable pushback it will experience from the union. In particular, public employers will want to examine the dues checkoff language in existing collective bargaining agreements to assess options and likely union responses.

4. Since public employers may be subject to suit for honoring checkoff authorizations that run afoul of Justice Alito’s comments, public employers will likely want to demand “defense and indemnity” collective bargaining agreement clauses to shield themselves from suit for honoring checkoff authorizations.