Guidance Regarding the 2018 Janus US Supreme Court Decision
The Rights and Duties of Public Employees, Public Employers, and Public Employee Unions
Public employees are a vital part of Pennsylvania’s workforce. They serve to ensure public safety and health, educate our citizens, and administer our laws. They provide many valuable and essential services to all Pennsylvanians. Public employees have an important history of the right to an organized labor force, and Pennsylvania has enacted laws to support and protect the right of public employees to organize.
The Janus Decision and Its Impact
The United States Supreme Court’s decision in Janus v. AFSCME, 585 U.S. __ (2018), issued June 27, 2018, has affected Pennsylvania’s laws regarding the collection of fair share fees from non-union employees. The Court’s decision in Janus overturned the long-established principle that public employees who decline union membership may be required to pay a fair share fee (also known as an “agency fee”) to support collective bargaining and other representational activities that the union is required to provide to employee members and non-members alike. Before Janus, the laws of more than 20 states, including Pennsylvania, permitted unions to negotiate for the deduction of such fees. Under Janus, these fees cannot be collected from public employee union non-members without their clear and affirmative consent.
The Janus decision does not impact the collection of union dues from union members or any preexisting arrangements regarding these dues. Employee union members’ existing choices as to membership cards, payroll deductions, and other agreements must be honored.
- Public employees may pay dues through a voluntary payroll deduction negotiated by their exclusive representative.
- Existing union member employees’ prior authorization of dues deductions remains valid. Union members are not required to reaffirm their prior authorization.
- Public employees who are not currently union members may choose to become dues-paying union members.
- Public employees who are nonmembers of unions who wish to consent to the payment of fair share fees should clearly and affirmatively indicate the employee’s consent to have such agency fees deducted from the employee’s wages. Otherwise no agency fee may be deducted. Note that employers are under no obligation to handle payroll deductions for such voluntary payments, unless the union and the employer agree.
As of June 27, 2018, public employers were to cease the collection of fair share fees from nonunion employees. If they have not done so already, public employers should meet with any unions whose agreements called for fair share fees, and discuss the impact of the Janus decision on their respective collective bargaining agreements.
What is Not Changed
Janus does not change any of the other rights and obligations regarding public employment under Pennsylvania law. As detailed below, public employees retain their rights under Pennsylvania law to organize and join unions and existing collective bargaining agreements, with severability clauses, remain in effect.
Pennsylvania law1 continues to protect the rights of public employees to:
- Form, join, or assist any employee organization for the purpose of bargaining collectively through representatives of their own choosing.
- Engage in lawful, concerted activities for the purpose of collective bargaining.
Under Pennsylvania law, public employers may not:
- Interfere with, restrain, or coerce employees in the exercise of rights guaranteed by the Public Employe Relations Act.2
- Dominate or interfere with the formation, existence or administration of any union.3
- Discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any union.4
- Discharge or otherwise discriminate against employees because they have signed or filed an affidavit, petition or complaint or given any information or testimony under the Public Employe Relations Act.5
- Refuse to bargain collectively in good faith with an employee representative which is the exclusive representative of employees in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative.6
- Refuse to reduce a collective bargaining agreement to writing and sign such agreement.7
- Violate any of the rules and regulations established by the Pennsylvania Labor Relations Board regulating the conduct of representation elections.8
- Refuse to comply with the provisions of a binding arbitration award.9
- Refuse to comply with the requirements of “meet and discuss.”10
1Section 401 of the Public Employe Relations Act, 43 P.S. § 1101.401.
243 P.S. § 1101.401.
343 P.S. § 1101.1201(a)(2).
443 P.S. § 1101.1201(a)(3).
543 P.S. § 1101.1201(a)(4).
643 P.S. § 1101.1201(a)(5).
743 P.S. § 1101.1201(a)(6).
843 P.S. § 1101.1201(a)(7).
943 P.S. § 1101.1201(a)(8).
1043 P.S. § 1101.1209(a)(9).