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On June 27, 2018, the United States Supreme Court, in Janus
v. American Federation of State, County and Municipal
Employees, closed out the October 2017 Term by delivering a
blow to public-sector unions. The Court held that states can no
longer agree with public-sector unions to force public employees
who are not union members to pay so-called "agency" or
"fair share" fees because such requirements violate the
First Amendment.
For almost 41 years, courts held that agency-shop clauses in
collective bargaining agreements (requiring non-members to pay the
union at least a portion of its regular dues for representation)
were valid for public-sector employees so long as the union used
the fees for collective bargaining, contract administration,
grievance adjustment purposes, and other activities "germane
to [the union's] duties as collective bargaining
representative." Abood v. Detroit Bd. of Educ., 431
U.S. 209 (1977).
In Janus, the Court overruled Abood, putting
to rest an issue that had come before the Court three times in the
last four years. In a 5-4 majority opinion authored by Justice
Samuel Alito, the Court considered the claim of Petitioner Mark
Janus, a state employee represented by the Illinois chapter of
AFSCME but not a member of the union. Janus disagreed with the
union in multiple respects, including his opposition to positions
that the union took in collective bargaining. Janus argued that
forcing him to pay agency fees compelled his support of those union
activities and that this obligation thus violated his First
Amendment rights.
Calling Abood "poorly reasoned," the Court
held that forced union fees violate the free speech rights of
non-members by compelling them to subsidize private speech on
matters of substantial public concern. "The First Amendment is
violated," Justice Alito wrote, "when money is taken from
nonconsenting employees for a public-sector union; employees must
choose to support the union before anything is taken from
them."
The Court rejected the union's contentions that "fair
share" fees were necessary to "promote labor peace"
and avoid burdening the union with uncompensated representation of
"free-riders," finding that these arguments did not
outweigh First Amendment objections and the interests underlying
them could be furthered through less onerous means than forced
union dues.
The Court also held that public-sector employees must
affirmatively agree to pay union dues, rather than be required to
opt out in order to avoid them. The majority concluded that
"neither 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."
Writing in dissent, Justice Elena Kagan argued there is no good
reason to overrule Abood, observing that more "than
20 States have statutory schemes built on the decision," and
that "reliance interests do not come any stronger."
Justice Kagan added that "judicial disruption does not get any
greater than what the Court does today." Justice Kagan
predicted that the majority's decision "will have
large-scale consequences. Public employee unions will lose a secure
source of financial support. State and local governments that
thought fair-share provisions furthered their interests will need
to find new ways of managing their workforces."
We will provide further guidance in the near future once the
ramifications of the Janus decision unfold. In the
meantime, public-sector employers should consider consulting
experienced labor counsel regarding the appropriate guidance for
employees who wish to learn more about this development.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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