Your classification as a private or public employee is important because it affects the rights and protections available to you, and your legal options, concerning compulsory unionism. Compulsory unionism is when an individual is forced to belong or pay dues or fees to a union as a condition of employment—whether that is in a “union,” “closed,” or “agency” shop.

Private-sector employees are governed by the National Labor Relations Act (“NLRA”), and they may file unfair labor practice charges before the National Labor Relations Board (“NLRB”) or a claim in federal court alleging the breach of a union’s duty of fair representation. Private-sector employees may be required as a condition of employment to pay the part of union dues that is used for collective bargaining and contract administration if their charter school enters into a collective bargaining agreement that requires such payments, but under the NLRA, as interpreted by the U.S. Supreme Court, employees may not be compelled to actually become a union member or pay full dues, including the part used for politics and other non-bargaining activities.

Public-sector employees are governed by the U.S. Constitution and state labor laws. Depending upon the specific state law applicable to them, public-sector employees can file a charge with a state labor board or a claim in state court or federal court. Public-sector employees, including employees of charter schools deemed to be public employers, cannot constitutionally be compelled to join or pay any monies to a union, regardless of what state law provides.

Because the law distinguishes between the private and public sectors, you must first determine whether you are considered a public- or private-sector employee to know what rights you have as a charter school teacher or other employee.

Step 1: Were you hired directly by the charter school or by a management company to work at the charter school?

If you, a charter school employee, are hired and paid by the charter school, then your employment classification is based on who established and operates the charter school. Proceed to Step 2.

If you, a charter school employee, are hired and paid by a management company (i.e. EMO, CMO, etc.) to work at the charter school, you are most likely a private-sector employee, governed by the rights and protections afforded to other private-sector employees under the NLRA.

Step 2: If you were hired directly by the charter school, how was the charter school created and how is it operated/governed?

This part of the analysis comes from the NLRB’s decisions in The Pennsylvania Virtual Charter School & PA Virtual Charter Education Association, PSEA/NEA, 364 NLRB No. 87 (2016), and Hyde Leadership Charter School—Brooklyn & United Federation of Teachers, Local 2, AFT, AFL-CIO, 364 NLRB No. 88 (2016), in which the NLRB found a Pennsylvania and New York charter school, respectively, to be private employers.

For more information about these decisions, click here.

The NLRB’s decisions classifying the two charter schools as private are limited to the National Labor Relations Act, and do not necessarily implicate other statutes or laws affecting charter schools, such as the First Amendment .

Based on Pennsylvania Virtual Charter School and Hyde Leadership, a charter school likely will be considered a private employer and subject to the NLRA if:

  • Private individuals or a private entity (such as a non-profit organization or corporation, etc.) directly create the charter school;
  • Private individuals or a private entity, on their own initiative, prepare and file a comprehensive application to establish a charter school. This is true regardless of whether or not the charter school existed as an independent legal entity before the application was submitted; or
  • The charter school’s governing board is selected and composed of primarily private individuals, with little to no involvement by public officials or the general electorate, and the school’s governing documents rather than state law determines the selection and removal process of the school’s governing board.

If you, a charter school employee, work at a charter school created or operating under one of the above scenarios, you will likely be considered a private-sector employee for purposes of the NLRA.

Based on Pennsylvania Virtual Charter School and Hyde Leadership, a charter school likely will be considered a public employer for purposes of the NLRA if:

  • The state or related public/governmental entity or official directly creates the charter school;
  • The state or related public/governmental entity or official, on its own initiative, prepares and files a comprehensive application to establish a charter school; or
  • The charter school’s governing board is selected and composed by primarily individuals who are historically considered to be public officials or is selected by the general electorate, or state law rather than the school’s government documents determines the selection and removal process of the school’s governing board.

If you, a charter school employee, work at a charter school created or operating under one of the above scenarios, you will likely be considered a public-sector employee for purposes of the NLRA and the NLRB’s jurisdiction.

Separate from the question of whether the charter school is subject to the NLRA, and thus, the NLRB’s jurisdiction, is whether the First Amendment applies to the school. On June 27, 2018, the U.S. Supreme Court in Janus v. AFSCME Council 31 ruled that it violates the First Amendment for a public employer to force public employees to pay union fees, either as a condition of employment or through automatic payroll deductions. This ruling only applies to employees that work for an employer that is deemed to be a public employer and thus subject to the First Amendment. Whether the First Amendment applies to a charter school employer depends on the factual and legal factors such as those discussed above.

In sum, your rights as a charter school employee depend on the specific facts and law regarding the charter school at which you work. For questions about your rights, or whether you are covered by public-sector or private-sector labor laws, please contact a Foundation staff attorney for assistance at (800) 336-3600, by email at [email protected], or by clicking here.

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