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U.S. Supreme Court Strikes Down Public-Sector Union Agency Fees

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All Public Employers with Unions

EFFECTIVE

June 27, 2018

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The U.S. Supreme Court recently stated that public-sector employees must affirmatively agree to pay union dues; unions may no longer take agency fees from nonconsenting public employees. In Janus v. American Federation of State, County and Municipal Employees, Mark Janus, a public employee in Illinois, refused to join his union because he opposed its positions. However, Illinois state law required non-members to pay an “agency fee” (i.e., a percentage of the full union dues) to cover union expenditures attributable to the union’s collective bargaining activities. Janus sued.

The Court stated that the “First Amendment is violated when money is taken from nonconsenting employees for a public-sector union.” Specifically, requiring public employees to pay agency fees compels them to “subsidize free speech on matters of substantial public concern.” “[N]either an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” Public-sector unions are now required to obtain affirmative consent from employees to participate in a union, not just provide a mere opt-out option.

Many state public-sector union laws are predicated on a 40-year-old case that permitted imposing such agency fees. Affected states will now be forced to review how they will effectuate union participation without violating Janus. Employers are likely to see a response to this case from state legislatures going forward.

Action Items

  1. Public-sector employers must immediately stop automatic deduction of agency fees from employee wages for employees who have not affirmatively agreed to such deduction
  2. Public-sector employers are recommended to implement authorization verification processes before deducting agency fees from applicable employees.
  3. Public-sector employers are recommended to review this recent ruling with legal counsel for further implications.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

OSHA Updates: Recordkeeping Rule Delayed; VEVRAA Benchmark; Revocation of Interpretation Letter

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All Employers

EFFECTIVE

April 27, May 31, and July1, 2017, respectively

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The constantly-transforming landscape of OSHA regulations employers must adhere to have shifted yet again.  The upcoming recordkeeping rule and a 2013 interpretation letter have been effectively disabled; additionally, contractors who must meet certain diversity benchmarks will want to pay attention to the updated annual VEVRAA benchmark numbers.

Kentucky Enacts Laws Impacting Employee Unions and Wages

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All Employers with KY Employees

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January 9, 2017

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In early January, Kentucky passed a number of bills that impact employee unions.  The bills contained an emergency clause, meaning they became immediately effective once signed by Governor Matt Bevin on January 9, 2017.

NLRB Says Joint-Employer Workers Can Join Unions Without Consent of Employers

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July 11, 2016

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Last year, we reported on the National Labor Relations Board’s (“NLRB”) controversial decision to redefine the joint-employer standard.  This year, the NLRB has reinstated a standard that allows bargaining units composed of both solely and jointly-employed workers to unionize, with or without their employer’s consent.  This would allow temporary workers who are jointly employed to more easily unionize.

July Updates

Employers May Bypass Union Activities’ Reporting Requirement Under the “Persuader Rule” If They Take Action Before July 1st

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All Employers

EFFECTIVE

July 1, 2016

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Last month, we reported on the U.S. Department of Labor’s (“DOL”) recently-issued Final Rule (“Rule”), designed to boost transparency in union/collective bargaining. Beginning July 1, 2016, the Rule requires public disclosures from an employer’s advisors (e.g., labor relations consultants or attorneys) who are engaged to perform any work that “has the ultimate objective of persuading employees” in relation to union/collective bargaining matters.

Union Updates: Employers Required to Disclose Consultants/Attorneys; “Fair Share” Fees Persist

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Varies; See Below

EFFECTIVE

Varies; See Below

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This HR Alert covers the following topics:

  1. U.S. Department of Labor Requires Employers to Disclose Consultants/Attorneys Hired to Respond to Union Activity
  2. Supreme Court Deadlocked on “Fair Share” Fees

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Regulation Changes With Regard to Unions

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All Employers

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April 13, 2015

and

September 1, 2015

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With the recent National Labor Relations Board (NLRB) ruling redefining joint employer status, more employers may have to be conscious of the changing regulations regarding collective bargaining procedures. Throughout 2015, the NLRB has issued some updates to the rules governing union elections and petitions. Companies that may now be categorized as a joint employer, and therefore potentially subject to union activity of the shared workforce, should review these updated rules, summarized below.

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NLRB Issues Controversial Decision Redefining Joint Employer Status

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All Employers

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August 27, 2015

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In a 3-2 decision involving Browning-Ferris Industries of California, the National Labor Relations Board revised its standard for determining joint-employer status last Thursday, August 27, 2015.

Specifically, the Board defined an employment relationship as one where the employer either exercises control or has the right to exercise control over the work of the employee. The latter is an added factor meant to bring NLRB standards in line with existing law. Thus, in determining joint employer status, where a “user employer reserves a contractual right to set a specific term or condition of employment for a supplier employer’s workers, it retains the ultimate authority” over the employee and “legal consequences may follow from this choice.”

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EEOC Issues Guidance Regarding Employer Use of Criminal Background Checks

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All Employers, Employment Agencies and Unions

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EEOC Guidance, upon issuance, April 25, 2012

New Notices, January 1, 2013

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On April 25, 2012, the EEOC voted to adopt new guidance for employers that use information on criminal convictions in their hiring process. The EEOC opined that, because arrest and conviction rates are higher among minorities than the general population, employers’ practices of rejecting anyone with a criminal record may have a disparate impact on minority candidates. This guidance applies to criminal convictions, not arrests, in that the EEOC’s position is that arrests that did not result in convictions should not be used in hiring decisions.

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