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Introduction to Your Rights: Charter School Employees

The unionization of charter schools is increasing rapidly, having jumped 444 percent from 2001-10 when compared to 1992-2000. The percentage and actual number of unionized charter schools varies greatly from state to state. “In 2016-17, the states with the largest number of unionized charter schools were California, Wisconsin, Maryland, and Ohio (215, 178, 48, and 46, respectively), accounting for 62.4 percent of all unionized charter schools across the country.” See “Unionized Charter Schools: Data from 2009-10.”

Unionizing employees is to take the employee’s natural rights to deal directly with their employer regarding the employee’s terms and conditions of employment, and give it to the union, who then acts as the employees’ exclusive bargaining representative.

Most employees, however, prefer a workplace where they are free to discuss their terms and conditions of employment directly with the employer, without a third-party’s intervention. See “Union Members – 2011.” Eva Moskowitz, former chair of the New York City Council Education Committee and current founder & CEO of Success Academy Charter Schools (currently operating 14 charter schools in Harlem, the Bronx, Brooklyn, and Manhattan, and an additional 6 planned the 2013-14 school year, noted:

The problem with the Soviet Union was not its leaders or its employees; it was the closed, uncompetitive economic system that stifled its innovation. We have the Soviet equivalent in our schools; it’s a system that shuns competition and thwarts change. But in America, it’s the [union] collective bargaining agreements that are the glue keeping the monopoly together.

“Breakdown,” Education Next, 2006.

Even where a union is involved, most employees prefer a workplace where union membership and the payment of union dues is voluntary, because it forces the union hierarchy to be more accountable to rank-and-file workers. It also forces union officials to sell the benefits of union representation and membership to the individual employees, instead of resorting to threats, intimidation, and even firings to gain financial support. See “Public Opinion on Right to Work“; “Voluntary Unionism Serves Workers, Not Bosses.”

Charter School Employees’ Rights—Public Sector v. Private Sector

If you are a charter school employee subject to unionization, your legal rights depend upon whether you are considered a public- or private-sector employee.

Public-sector employees are governed by state labor laws and, depending upon specific state law, they can file a charge with a state labor board or file a claim in court.

As a result of the U.S. Supreme Court’s decision in Janus v AFSCME, 138 S. Ct. 2448 (2018), a First Amendment lawsuit that was supported by the Foundation and argued and won by Foundation attorneys, charter school employees who work for a public sector charter school employer have a First Amendment right not to pay union dues or fees.

You may visit MyJanusRights.org to learn more about Janus and your rights under it.

Private-sector employees, in contrast, are governed by the National Labor Relations Act (“NLRA”), and they may file unfair labor practice charges before the federal National Labor Relations Board (“NLRB” or “Board”) or a claim in federal court. Charter school employees who work for a private sector charter school employer in any of the twenty-seven Right to Work states have a statutory right not to pay union dues or fees. You may visit National Right to Work Foundation Right to Work States – National Right to Work Foundation (nrtw.org) to learn the twenty-seven Right to Work states. Those private employees in the other states may not have such a right depending on the terms of any collective bargaining agreement that covers their job classification.

Steps to Determine if You, a Charter School Employee, are Public Sector or Private Sector

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 the determination is based on who established and operates the charter school, and proceed to Step 2 of the analysis. 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, and your analysis ends here.

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

This part of the analysis originates from the NLRB’s decision in Chicago Mathematics & Science Academy Charter School, Inc. (CMSA), 359 N.L.R.B. No. 41 (2012), finding that CMSA, a private, nonprofit corporation, created under Illinois’ General Not-For-Profit Corporation Act, was a private employer under the NLRA. The Board’s decision was based on unique factors in the Illinois’ charter school law and facts specific to CMSA. The NLRB held that because CMSA was not created directly by the state of Illinois, nor had a governing board “administered by individuals responsible to public officials or the general electorate,” it was a private employer under the NLRB’s jurisdiction.

The NLRB specifically did not apply its CMSA ruling to all charter schools in the United States. Even though the NLRB limited its decision to the specific parties and facts involved, the NLRB will likely classify Illinois charter schools similar to CMSA as private employers. As a result, charter school employees who work at Illinois charter schools with facts similar to CMSA will likely be considered private-sector employees.

If you do not work in an Illinois charter school, the NLRB’s decision in CMSA offers guidance for how the Board may classify charter schools in other states, resulting in a classification of your status as an employee of the school.

A general analysis is provided below for charter school employees who are hired directly by the charter school.

Public-Sector Charter School Employees:
A charter school will likely be considered a public employer if:

  • The state directly creates the charter school;
  • The state or related public/governmental entity initiates, on its own and without a third party’s involvement, the charter school’s creation;
  • Using a petition or application process to create the charter school, the authorizer or sponsor is a public entity and the applicant is a historically public/governmental entity or official; or
  • The charter school’s governing board is composed of and/or selected by primarily individuals who are historically considered to be public officials or selected by the general electorate.

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.

Private-Sector Charter School Employees:
A charter school will likely be considered a private employer if:

  • Private individuals or entities, such as a non-profit organization or corporation, etc., creates the charter school;
  • Using a petition or application process, private individuals or entities, create the charter school; or
  • The charter school’s governing board is composed of and/or selected by primarily private individuals, with little to no involvement by historically considered public officials and/or the general electorate population at large (not just parents of the charter school’s students).

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.

*NOTE: Each state’s charter school law differs from Illinois’ and factors among the individual charter schools vary. Your classification as a charter school employee depends on the specific facts and law involved with your employment and the charter school at which you work. For questions about the CMSA decision, your rights, and/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 here.

For questions concerning any of the above information, please contact a Foundation staff attorney at (800) 336-3600, via email or by clicking here, for assistance.

The National Right to Work Legal Defense Foundation defends America’s workers against the abuses of compulsory unionism. To learn your rights as charter school employee, click on any of the following questions:

QUESTIONS & ANSWERS

(Download our one sheet PDF printout on understanding your Janus rights here.)

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