This morning, the United States Supreme Court issued its long awaited decision in the case of Janus v. AFSCME, holding that requiring payment of a “fair share” or “agency shop” fee is unconstitutional. The decision overturns over 40 years of case law that allowed public employee unions to collect a “fair share” or “agency shop” fee from non-member bargaining unit government employees to cover the costs of collective bargaining and other non-political functions that the union was required by law to perform on behalf of such employees as a result of a union’s exclusive representative status. The Court held that non-member bargaining unit employees have a First Amendment right to refuse to financially contribute to a union’s collective bargaining activity because that activity is inherently political in its own right, as it involves issues such as a public agency’s budget, performance of government services, public employee benefit issues, and other matters of general public concern. Now, after Janus, non-member bargaining unit employees must affirmatively consent to opt into agency shop or fair share fees before any wages may be deducted from their paycheck.
The case originated in the state of Illinois where the plaintiff, Mark Janus, a government employee, determined that he did not want to pay his required union fees as a non-member to cover the costs of collective bargaining and enforcing the contract negotiated by his union. Although Mr. Janus received all the contractual benefits that were negotiated by his union, he was not a member of the union (AFSCME) because he disagreed with many of the positions the union advocated in collective bargaining.
Prior to the decision issued today, individuals like Mr. Janus were required to pay “fair share” or “agency shop” fees to their union to cover the costs of negotiating and enforcing collective bargaining agreements and related rights. In the case of Mr. Janus he was paying approximately 78% of the full union dues, the amount apportioned to cover “non-political” union expenditures. The legal requirement for Mr. Janus to pay his fair share fees had been previously upheld by the Supreme Court in a 1977 case entitled Abood v. Detroit Board of Education. Abood upheld unions’ rights to collect fees from non-member bargaining unit employees for the non-political services the union provides.
Mr. Janus and his lawyers argued that he should not have to pay his fair share fees since the requirement violated his First Amendment right to be free from compelled political speech. Mr. Janus asserted that his union, which represents public employees, was engaged in political activity by virtue of the fact that it was organized to attempt to influence government officials to enhance its members’ collectively bargained rights and benefits. Mr. Janus argued that the Abood decision was wrongly decided since “bargaining with the government is political speech indistinguishable from lobbying the government.”
In a 5-4 decision, the Supreme Court agreed and held that “a significant impingement on First Amendment rights occurs when public employees are required to provide financial support for a union that takes many positions during collective bargaining that have powerful political and civic consequences.” The Court eliminated the requirement under Abood that non-members pay their fair share fees to support collective bargaining efforts. The decision rejected the union’s concern that it is unfair to allow non-members a “free ride” by reaping the benefits of collective bargaining without paying their fair share, being that the union as an exclusive representative has a legal obligation to fairly represent all bargaining unit employees, members and non-members alike. The Court dismissed this concern, opining that the “free rider” problem has not harmed public employee unions in jurisdictions that do not allow compelled fair share payments, and that the government’s interest in establishing “labor peace” was illusory and otherwise insufficient to justify compelled speech. In overruling established precedent in Abood, the Court also mentioned that it was unworkable to distinguish between costs used for political purposes and those for non-political purposes which made the prior rules almost impossible to enforce.
The Court used strong language to discredit agency fees which exposed a very clear anti-union sentiment. For example, the Court opined that the prior ability to collect fees led to “abuse” by public employee unions, and that they had received a “windfall” amounting to billions of dollars in fair share fees from non-members in the decades since Abood was decided. As a law firm dedicated to supporting, protecting, and advancing the rights of public employee unions and their members, we are extremely disappointed in the outcome of this decision.
We expect that given the long history of strong solidarity in public safety unions that the overwhelming majority of employees will stand firm, particularly in light of the exclusive benefits such as legal defense that are only available to union members. We remain steadfast in protecting public sector union rights and stand ready to advise and provide guidance in the wake of this decision.