Janus FAQ
Frequently Asked Questions on Post-Janus Compliance Duty of Fair Representation
Q1: Does the union have the same duties toward the workers it represents that it had before Janus?
A1: We believe that workers are stronger together, and, as such, that we should represent all workers in our bargaining units, as we did before Janus. Over the course of the next few months, many of us will be carefully distinguishing which benefits are members-only and which benefits of union representation apply to all. For now, we recommend you continue to follow your state’s laws and rulings by the public employees’ relations board on representing nonmembers.
Q2: Can a union implement a “fee-for-service” model—charging nonmembers for union services, like representation in grievance proceedings?
A2: The law in your individual state controls this issue. In New York, for example, the new state law provides that certain representational activities, under certain circumstances, do not fall under the duty of representation, and, as such, a local could make a decision to charge nonmembers a fee for those activities under state law. In many other states, charging a fee would violate the duty of fair representation.
While there are some financial advantages to charging nonmembers for grievance/arbitration, there are some potential downsides as well. For example, charging nonmembers a grievance fee opens up the field for third-party anti-union agents or other faux associations, and could eventually undermine our exclusive bargaining agent status.
The implementation of a fee-for-service model (whether through state legislation or otherwise) would be a significant change in most states and would have serious consequences for your ability to organize and service the bargaining units you represent. We will be spending time as a union thinking through the pros and cons of this and will have more to say over the next month. Please consult with the AFT to discuss before creating such a system.
Q3: Can we provide better or more services to members?
A3: The answer to this question depends on both state law and whether the benefits are based on the collectively bargained contract or provided through the union. In many states, the duty of fair representation requires that bargained for, contractual benefits must be provided in a nondiscriminatory manner to the members and nonmembers covered by the contract. However, it may be possible that noncontractual benefits available through the union be provided to members only. The AFT provides a variety of members-only benefits, including professional development resources, insurance discounts and legal services. You can learn more at the AFT’s member benefits website.
Dues Collection
Q4: What effect does Janus have on collecting dues?
A4: You can collect dues if you have the affirmative consent of a member, such as a signed union card. While we cannot presume (nor have we ever) that someone is automatically a member, our position is that the Janus decision DOES NOT REQUIRE that the local get new dues authorization or membership cards signed from current union members.
Q5: Does Janus change how we collect dues from members?
A5: No. Janus does not affect how we collect dues for individuals who have signed a membership card. Employers that are contractually obligated to deduct dues and remit them to the union are absolutely still required to do so, and could face liability if they breach their obligations. However, some right-wing groups have been twisting the holding of Janus and putting forth an erroneous interpretation that the decision requires employers to stop all dues deductions (either temporarily or indefinitely). Some employers, out of confusion, lack of understanding or otherwise, have initially taken this position. If an employer of a bargaining unit you represent indicates that it believes this is what the decision requires, please contact the AFT so we can assist you in ensuring that the employer understands its continued legal obligations. We can also assist your legal team in taking action on this issue if necessary.
Q6: Do we have to refund fair-share fees we’ve collected prior to June 27?
A6: This decision became effective the day it was issued, June 27, 2018. We do not believe any dues for any time prior to June 27 need to be refunded. However, litigation has been brought in a number of states by employees represented by the Freedom Foundation and other anti-union groups seeking to obtain fees retroactively. The AFT legal department is working with the NEA, AFSCME and SEIU on a strong, coordinated defense to these suits. If you become aware of these kinds of litigation efforts, please contact the AFT legal department immediately.
Q7: Should we collect fees on wages earned before the decision?
A7: The AFT is advising affiliates not to accept any fee that was received on or after June 27, even if the fee was deducted out of a paycheck for work performed before June 27. The Janus decision states that “[n]either an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay” (emphasis added). Especially because unions will very likely need to defend their actions under a good faith standard in future litigation, we recommend that you not accept these fees.
Q8: Can the union still charge a fee to fair-share payers or nonmembers?
A8: The decision appears to allow a voluntary fair-share fee payer status. We will be discussing with the AFT Executive Council and our affiliates whether, after Janus, it makes sense to have a voluntary fair-share payer status. This is both a legal decision and a policy decision. The ideal situation is to convert any prior agency-fee payer to a dues-paying member. If you are considering implementing other fee structures, please consult with the AFT before implementing. This question will have major implications on our organizing strategy moving forward and could also have internal governance implications.
Q9: What about maintenance of membership or dues provisions?
A9: In the post-Janus world, it is very important to understand the difference between membership, on the one hand, and dues authorization, on the other. After Janus, collective bargaining agreement provisions for maintenance of membership are not enforceable, and they should be removed now or in future negotiations. However, CBA provisions providing that the employer
will deduct membership dues from members’ payroll checks are, as noted above, still enforceable. Sample cards that provide authorization for both membership and dues authorization are available on the AFT All In website. If you have further questions about this distinction, please contact the AFT legal department.
Membership Cards
Q10: Can the union presume that new employees in a bargaining unit are members of the union until the individual opts out of the union?
A10: No. The union must obtain affirmative consent (such as a signed membership card) from new bargaining unit employees before membership dues are deducted.
Q11: Do existing membership cards need to be re-signed?
A11: No. Our position is that if your existing membership card has a clear indication of affirmative consent to membership, a replacement card is not required. Janus only affects those individuals who were previously nonmember agency-fee payers. But many of our affiliates are doing recommitment and re-carding campaigns, which we fully support and endorse.
Q12: Do we need to continue to issue a Hudson notice or otherwise give notice to current public sector members of their right to drop membership?
A12: No. The decision applies to the rights of public sector nonmembers and limits our ability to require a payment from them. We do not read the decision to require anything with regard to our current public sector members. Because neither dues nor fees can be required any longer, the old paradigm of notice to public sector members of anticipated nonchargeable expenses for the year and the right to opt out of membership is now moot.
Fighting Back Against Membership Drop Campaigns
As soon as Janus was issued, right-wing organizations launched aggressive email campaigns targeted toward our members in an effort to get them to drop membership and become what are often called “free riders,” in other words, individuals who gain all the benefits of union representation without paying their fair share of what it takes to run the union (see, for an example of these opt-out and drop campaigns, www.mypaymysay.com). The questions and answers below relate to the steps you can take to protect your members from such email and mail system communications.
Q13: Can a public employer block outside organizations from using its email system?
A13: Yes. Public employers have the right to properly restrict the use of their email systems by outside organizations. In order to do so, a public employer must adopt and consistently enforce a policy limiting the scope, access and type of emails permitted by third parties.
Q14: Can a union bargain language in a collective bargaining agreement that addresses outside organizations’ use of public employer email systems?
A14: Yes. It is worth considering whether the union wants to try to bargain language concerning access to the employer’s email system by third parties that are interested in interfering with the bargaining relationship. Such a bargaining proposal would most likely be considered a permissive subject under most state collective bargaining laws, which limits certain options in negotiations. However, where a union has a good working relationship with an employer and the employer has indicated a willingness to bargain language that would address the Janus decision, such a proposal may be warranted.
Q15: Are these organizations breaking any laws by sending these communications?
A15: There are a variety of laws that govern this kind of activity. For example, commercial emails are regulated by the CAN-SPAM Act. Text messages and phone calls are regulated by the Telephone Consumer Protection Act. Please inform the AFT immediately about any of these kinds of communications at www.ReportAUnionBuster.com and contact the AFT legal department if you want more information on these laws or believe there may have been a violation.
Other Issues
Q16: Do we need to modify or remove the fair-share provisions in our current collective bargaining agreement?
A16: No. Most CBAs have a severability clause that takes care of the issue. But even if your CBA doesn’t contain one, the language is no longer legally enforceable. This is not an essential CBA term and does not render your entire CBA void. Your union is free to negotiate a memorandum of understanding to cover this situation, but reopening the CBA is not required.
Q17: Does Janus apply to charter schools?
A17: It depends on the statutory regime in your state. If, by law, the charter school is considered to be a public entity, Janus applies. If the charter school is deemed a private entity subject to the National Labor Relations Act, Janus does not apply and fair-share arrangements can still be negotiated with the employer.
For more information:
If you have additional questions about post-Janus compliance or the so-called drop and opt-out campaigns of right-wing groups targeting our members you can:
Q1: Does the union have the same duties toward the workers it represents that it had before Janus?
A1: We believe that workers are stronger together, and, as such, that we should represent all workers in our bargaining units, as we did before Janus. Over the course of the next few months, many of us will be carefully distinguishing which benefits are members-only and which benefits of union representation apply to all. For now, we recommend you continue to follow your state’s laws and rulings by the public employees’ relations board on representing nonmembers.
Q2: Can a union implement a “fee-for-service” model—charging nonmembers for union services, like representation in grievance proceedings?
A2: The law in your individual state controls this issue. In New York, for example, the new state law provides that certain representational activities, under certain circumstances, do not fall under the duty of representation, and, as such, a local could make a decision to charge nonmembers a fee for those activities under state law. In many other states, charging a fee would violate the duty of fair representation.
While there are some financial advantages to charging nonmembers for grievance/arbitration, there are some potential downsides as well. For example, charging nonmembers a grievance fee opens up the field for third-party anti-union agents or other faux associations, and could eventually undermine our exclusive bargaining agent status.
The implementation of a fee-for-service model (whether through state legislation or otherwise) would be a significant change in most states and would have serious consequences for your ability to organize and service the bargaining units you represent. We will be spending time as a union thinking through the pros and cons of this and will have more to say over the next month. Please consult with the AFT to discuss before creating such a system.
Q3: Can we provide better or more services to members?
A3: The answer to this question depends on both state law and whether the benefits are based on the collectively bargained contract or provided through the union. In many states, the duty of fair representation requires that bargained for, contractual benefits must be provided in a nondiscriminatory manner to the members and nonmembers covered by the contract. However, it may be possible that noncontractual benefits available through the union be provided to members only. The AFT provides a variety of members-only benefits, including professional development resources, insurance discounts and legal services. You can learn more at the AFT’s member benefits website.
Dues Collection
Q4: What effect does Janus have on collecting dues?
A4: You can collect dues if you have the affirmative consent of a member, such as a signed union card. While we cannot presume (nor have we ever) that someone is automatically a member, our position is that the Janus decision DOES NOT REQUIRE that the local get new dues authorization or membership cards signed from current union members.
Q5: Does Janus change how we collect dues from members?
A5: No. Janus does not affect how we collect dues for individuals who have signed a membership card. Employers that are contractually obligated to deduct dues and remit them to the union are absolutely still required to do so, and could face liability if they breach their obligations. However, some right-wing groups have been twisting the holding of Janus and putting forth an erroneous interpretation that the decision requires employers to stop all dues deductions (either temporarily or indefinitely). Some employers, out of confusion, lack of understanding or otherwise, have initially taken this position. If an employer of a bargaining unit you represent indicates that it believes this is what the decision requires, please contact the AFT so we can assist you in ensuring that the employer understands its continued legal obligations. We can also assist your legal team in taking action on this issue if necessary.
Q6: Do we have to refund fair-share fees we’ve collected prior to June 27?
A6: This decision became effective the day it was issued, June 27, 2018. We do not believe any dues for any time prior to June 27 need to be refunded. However, litigation has been brought in a number of states by employees represented by the Freedom Foundation and other anti-union groups seeking to obtain fees retroactively. The AFT legal department is working with the NEA, AFSCME and SEIU on a strong, coordinated defense to these suits. If you become aware of these kinds of litigation efforts, please contact the AFT legal department immediately.
Q7: Should we collect fees on wages earned before the decision?
A7: The AFT is advising affiliates not to accept any fee that was received on or after June 27, even if the fee was deducted out of a paycheck for work performed before June 27. The Janus decision states that “[n]either an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay” (emphasis added). Especially because unions will very likely need to defend their actions under a good faith standard in future litigation, we recommend that you not accept these fees.
Q8: Can the union still charge a fee to fair-share payers or nonmembers?
A8: The decision appears to allow a voluntary fair-share fee payer status. We will be discussing with the AFT Executive Council and our affiliates whether, after Janus, it makes sense to have a voluntary fair-share payer status. This is both a legal decision and a policy decision. The ideal situation is to convert any prior agency-fee payer to a dues-paying member. If you are considering implementing other fee structures, please consult with the AFT before implementing. This question will have major implications on our organizing strategy moving forward and could also have internal governance implications.
Q9: What about maintenance of membership or dues provisions?
A9: In the post-Janus world, it is very important to understand the difference between membership, on the one hand, and dues authorization, on the other. After Janus, collective bargaining agreement provisions for maintenance of membership are not enforceable, and they should be removed now or in future negotiations. However, CBA provisions providing that the employer
will deduct membership dues from members’ payroll checks are, as noted above, still enforceable. Sample cards that provide authorization for both membership and dues authorization are available on the AFT All In website. If you have further questions about this distinction, please contact the AFT legal department.
Membership Cards
Q10: Can the union presume that new employees in a bargaining unit are members of the union until the individual opts out of the union?
A10: No. The union must obtain affirmative consent (such as a signed membership card) from new bargaining unit employees before membership dues are deducted.
Q11: Do existing membership cards need to be re-signed?
A11: No. Our position is that if your existing membership card has a clear indication of affirmative consent to membership, a replacement card is not required. Janus only affects those individuals who were previously nonmember agency-fee payers. But many of our affiliates are doing recommitment and re-carding campaigns, which we fully support and endorse.
Q12: Do we need to continue to issue a Hudson notice or otherwise give notice to current public sector members of their right to drop membership?
A12: No. The decision applies to the rights of public sector nonmembers and limits our ability to require a payment from them. We do not read the decision to require anything with regard to our current public sector members. Because neither dues nor fees can be required any longer, the old paradigm of notice to public sector members of anticipated nonchargeable expenses for the year and the right to opt out of membership is now moot.
Fighting Back Against Membership Drop Campaigns
As soon as Janus was issued, right-wing organizations launched aggressive email campaigns targeted toward our members in an effort to get them to drop membership and become what are often called “free riders,” in other words, individuals who gain all the benefits of union representation without paying their fair share of what it takes to run the union (see, for an example of these opt-out and drop campaigns, www.mypaymysay.com). The questions and answers below relate to the steps you can take to protect your members from such email and mail system communications.
Q13: Can a public employer block outside organizations from using its email system?
A13: Yes. Public employers have the right to properly restrict the use of their email systems by outside organizations. In order to do so, a public employer must adopt and consistently enforce a policy limiting the scope, access and type of emails permitted by third parties.
Q14: Can a union bargain language in a collective bargaining agreement that addresses outside organizations’ use of public employer email systems?
A14: Yes. It is worth considering whether the union wants to try to bargain language concerning access to the employer’s email system by third parties that are interested in interfering with the bargaining relationship. Such a bargaining proposal would most likely be considered a permissive subject under most state collective bargaining laws, which limits certain options in negotiations. However, where a union has a good working relationship with an employer and the employer has indicated a willingness to bargain language that would address the Janus decision, such a proposal may be warranted.
Q15: Are these organizations breaking any laws by sending these communications?
A15: There are a variety of laws that govern this kind of activity. For example, commercial emails are regulated by the CAN-SPAM Act. Text messages and phone calls are regulated by the Telephone Consumer Protection Act. Please inform the AFT immediately about any of these kinds of communications at www.ReportAUnionBuster.com and contact the AFT legal department if you want more information on these laws or believe there may have been a violation.
Other Issues
Q16: Do we need to modify or remove the fair-share provisions in our current collective bargaining agreement?
A16: No. Most CBAs have a severability clause that takes care of the issue. But even if your CBA doesn’t contain one, the language is no longer legally enforceable. This is not an essential CBA term and does not render your entire CBA void. Your union is free to negotiate a memorandum of understanding to cover this situation, but reopening the CBA is not required.
Q17: Does Janus apply to charter schools?
A17: It depends on the statutory regime in your state. If, by law, the charter school is considered to be a public entity, Janus applies. If the charter school is deemed a private entity subject to the National Labor Relations Act, Janus does not apply and fair-share arrangements can still be negotiated with the employer.
For more information:
If you have additional questions about post-Janus compliance or the so-called drop and opt-out campaigns of right-wing groups targeting our members you can:
- Email [email protected]. This email address is monitored by the AFT’s legal, organizing and communications departments as well as by the office of the president.
- Call our AFT Solidarity hotline (800-497-3571), which is staffed during the month after theJanus decision from 9 a.m. – 9 p.m. Eastern time, seven days a week.
- Visit www.ReportAUnionBuster.com to enter information about what the right wing is doing in your area.
- Visit the AFT’s All In website. This website is password-protected, so you must register for access. You’ll find myriad post-Janus resources, including information on the right-wing groups behind Janus and who’s funding them, sample letters for employers and members, sample membership cards, and materials for engaging members in issue campaigns, among other resources.
