Questions and answers on payroll deductions for union dues in light of the Janus decision

On Board Online • July 23, 2018

By the New York State Association of School Attorneys

State law requires school districts and other employers to make payroll deductions for union dues and agency fees (union dues minus the cost of lobbying or other political representation). This obligation will be significantly affected by the U.S. Supreme Court's decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31 and its interplay with New York State's "Taylor Law."

Under Janus, agency fees are no longer compulsory for non-union members who fall within the parameters of a bargaining unit, but may continue to be paid on a voluntary basis upon affirmative consent by the employee.

In anticipation of the Janus decision, the Taylor Law was amended this year to tighten the timeframe for making and transmitting union dues deductions from consenting union employees. Specifically, dues must be deducted no later than 30 days after receiving proof of a signed dues deduction authorization card, and they must be transmitted to the union within 30 days.

The amendment further authorizes the employer to accept an "electronically signed authorization card" as opposed to the traditional, hand-signed card.

Finally, the employer is obligated to notify the union within 30 days of an employee being hired or rehired, promoted, or transferred into a bargaining unit, and provide a "reasonable amount of time" for the union to meet with the employee.

The following questions and answers provide some guidance regarding payroll deductions for union dues and agency fees:

Q: Is an employee required to "opt in" to the payment of agency fees or union dues?

A: Yes. The Janus decision makes it clear that in order to make a payroll deduction for union purposes on behalf of an employee, the employee must affirmatively consent or "opt-in" for the deduction to take place. The employee must now affirmatively consent to such withholdings, as there is no longer automatic withholding.

Q: Should our school district or BOCES require all union members to re-sign and submit dues deduction authorization cards because of the Janus decision?

A: No. If an employer already has dues deduction authorization cards on file for employees, no further information from these employees is needed and dues deductions should continue uninterrupted.

Q: Can our school district or BOCES rely on union lists regarding who is or is not a member of the union for the purposes of payroll deductions?

A: No. In New York, the collection of union dues is governed by the Taylor Law, which requires dues deductions to be made "upon presentation of dues deduction authorization cards signed by individual employees." Recent amendments to this section provide that signed dues deduction authorization cards can take the form of an electronically signed authorization card as well as the traditional, hand-signed card.

Q: What should we tell our employees and union representatives to make our post-Janus payroll process as smooth as possible?

A: It would be prudent for employers to send correspondence to all of their unions, with a copy to individual members and non-members, explaining the following: (a) if the employer has a dues deduction authorization card or other written/electronic authorization from the employee on file, the employee's union dues deductions will continue uninterrupted; (b) if there is no card or other sufficient written or electronic authorization on file, in order to comply with Janus and the Taylor Law, the district will require proof of an executed card or other sufficient written/electronic authorization, and, shall cease dues deductions if the employee/union does not provide a sufficient written/electronic authorization after a reasonable opportunity to do so; and (c) if the employee previously paid an agency fee, such deductions will cease immediately unless the employee provides written or electronic consent to continue the agency fee deduction or elects to join the union and consents to full union dues deduction.

Q: Suppose our district business office checks its records before running its next payroll and can't find a dues deduction authorization card on file for an employee. What form of authorization is sufficient under these circumstances?

A: School districts should consult with their attorneys if such a situation arises, as this is an unresolved area of law. Ideally, the employee will promptly provide a card or other form of written/electronic authorization indicating their affirmative consent to a payroll deduction, because the Taylor Law requires a signed paper or electronic authorization card. The Janus decision, on the other hand, only addresses the constitutional requirement for some form of affirmative consent for withholdings by an employee. In the event an employee (or a union) insists on submitting a document electronically signed by the employee, such as an email, it is likely such document would satisfy the constitutional mandate expressed in the Janus decision. However, school officials would be well-advised to consult counsel regarding whether a district could lawfully reject such documentation as falling short of what is required by the newly amended Taylor Law. Regardless, absent some form of written or electronic authorization, the district should cease deduction of dues.

Q: Suppose an employee leaves the district for less than a year due to maternity leave or other reason. Does the employee have to file a new dues deduction authorization card upon returning to work?

A: If an employee who has authorized a dues deduction is removed from payroll or otherwise placed on an involuntary or voluntary leave of absence, whether paid or unpaid, the employee's membership in the union is automatically continued once the employee is placed back on payroll or restored to active duty following the leave. The employee does not have to fill out a new authorization card. For any employee who has given an authorization card, the dues deduction remains in effect until the employee either revokes union membership, in writing, or is no longer employed. If an employee leaves the employ of the school district and returns within one year, he or she does not have to fill out a new authorization card.

The landscape of the law in this area will likely be changing for the foreseeable future. Employers and unions are waiting to see how the state Public Employment Relations Board and state courts resolve disputes in light of both the Janus decision and the amendments to the Taylor Law. It is more important than ever that school boards consult with their labor counsel on specific questions as they arise.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by John P. Sheahan of Guercio & Guercio, LLP nd Rose A. Nankervis of Ingerman Smith, LLP.