Post-Janus Law Obliges Public Employers to Assist Unions

by Maureen A. Lemon   (Spring 2020 Newsletter)

Since the 2018 U.S. Supreme Court’s ruling in Janus v. AFSCME, public unions have sought to diminish the impact of that decision, which gave public employees the right to opt out of union membership. In a nod to Illinois public unions, Governor J.B. Pritzker signed into law Public Act 101-620 on December 20, 2019. The new law requires Illinois public employers to regularly provide updated information about their workforce to any exclusive bargaining representative, prohibits the disclosure of certain employee information to third parties, and allows union officials the right to meet with employees on work premises during the work day.

Provide union with updated employee information on a monthly basis

P.A. 101-620 requires all employers governed by the Illinois Educational Labor Relations Act (IELRA) and the Illinois Public Labor Relations Act (IPLRA) to provide the following information regarding all current employees, regardless of their union affiliation, to the applicable exclusive bargaining agent:

  • Employee name
  • Job title
  • Date of hire
  • Worksite location
  • Work ID number (if available)
  • Work telephone numbers
  • Work email address
  • Home and personal phone numbers (on file)
  • Personal email address (on file)

The information must be provided in an Excel file or other mutually agreed upon editable digital format. School employers must share the information within 10 calendar days from the beginning of each school term and then every 30 calendar days during the school term. IPLRA employers must provide the same information at least once each month and upon request, as long as the information is not requested more than once per payroll period. Comparable information must be provided to the applicable union within 10 calendar days from the date of hire of a new bargaining unit employee, unless the parties agree to another time frame.

Do not disclose private and union membership Information to Third Parties

The new law prohibits employers subject to the IELRA and the IPLRA, as well as all pension funds and retirement systems subject to the Illinois Pension Code, from disclosing certain information, unless such disclosures are (i) required under the Freedom of Information Act (FOIA); (ii) made for purposes of conducting public operations or business; or (iii) made to the exclusive labor representative as stated above. Specifically, the following information generally may not be disclosed to a third party by any Illinois public employer or pension fund: (1) home address; (2) date of birth; (3) home and personal phone number; (4) personal email address; (5) membership status in a labor organization and/or dues paid to such organization; and (6) emails or other communications between a labor organization and its members. A public employer that discloses information that is exempt from disclosure commits an unfair labor practice.

Public employers that receive a request for any of the above-information by anyone other than the exclusive bargaining representative must provide a written copy of the request, or a written summary of an oral request, to the exclusive bargaining representative or, if none exists, to the employee. The employer must also provide a copy of any response within five business days of sending it.

Some of this personal information was already barred from disclosure under FOIA. However, while an employee’s membership status in a labor organization or emails between a union and its members would typically be subject to disclosure under FOIA, FOIA itself was amended by P.A. 101-620 to exempt that information from inspection and copying. Since the purpose of P.A. 101-620 is to protect unions, in part from third party right-to-work groups that seek to disrupt the relationships between unions and their members, it is reasonable to conclude that public entities subject to P.A. 101-620 should not release any of the information listed above in response to a FOIA request.

Allow union access to employees during work hours

School and IPLRA employers must allow union agents and their employees “reasonable access” to employees in the bargaining units they represent. This access may not impede normal operations and must be without charge to pay or leave time of employees or union representatives.

This access includes:

  • Meeting with employee(s) on the employer’s premises during the workday to investigate and discuss grievances and workplace-related complaints,
  • Meetings on the employer’s premises during lunch and other non-work breaks, and before and after the workday, to discuss collective bargaining negotiations, the administration of union contracts, and internal matters involving the union,
  • Meeting with newly hired employee(s) for up to one hour either within the first two weeks of employment or at a later date mutually agreed upon by the employer and union, either on the employer’s premises or at another mutually agreed upon location, and
  • The right to use employer facility mailboxes and bulletin boards to communicate with bargaining unit employee(s).

The employer and union may, but are not required to, negotiate greater access by the union to bargaining unit employees, including through the employer’s email system. Unless such access is granted, unions may not communicate with public employees through the employer’s email system.

Direct employee requests regarding union membership and dues to union

Codifying best practice since the Janus decision was issued in 2018, P.A. 101-620 specifies that all employee requests to authorize, revoke, cancel, or change authorizations for union dues deductions should be directed to the union rather than to the public employer. Public employers shall rely on information provided by the union regarding whether deductions have properly been authorized, revoked, canceled or changed. The union shall indemnify the public employer for any damages and reasonable costs incurred for any claims made by employees for deductions made in good faith reliance on such information.

We anticipate labor disagreements over certain aspects of P.A. 101-620. If you have any concerns as you implement the new law’s requirements, please call Maureen Lemon or Karl Ottosen at (630) 682-0085.