In a 5-4 decision, the Supreme Court overruled past precedent and held that public-sector unions cannot require non-member employees to pay “agency fees” (fair share fees) which cover the costs of collective bargaining. The Petitioner, Mark Janus, is an employee of the state of Illinois whose unit is represented by American Federation of State, County, and Municipal Employees (“AFSCME”), a public union. Janus refused to join the Union, citing opposition to many of the Union’s positions, specifically the union’s collective bargaining positions.  Janus brought this action challenging the constitutionality of agency fees.

The Court held that the State’s deduction of agency fees from “nonconsenting public-sector employees violates the First Amendment.” The Court reasoned that forcing individuals to endorse ideas they do not agree conflicts with the First Amendment. A non-member’s right to free speech is violated when he or she is compelled “to subsidize private speech on matters of substantial public concern.”  Further, the Court dismissed that argument that the state has compelling interests in protecting against “free-riders” and maintaining “labor peace.”

Moving forward, government entities and public-sector unions may no longer deduct agency fees from non-consenting non-member employees. Employees must make the decision to support the union before any payment is deducted from them.  As the Court stated, a fair share fee compels speech by those forced to contribute to the Union.

The Court’s decision is effective immediately.  The Court stated, “Neither an agency fee nor any other payment to the union may be deducted from a non-members wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., 585 U.S. (June 27, 2018).

Based on this decision, public employers should be aware/do the following:

  1. Immediately cease deducting fair share fees from those employees who are not dues paying members. Employers should notify the union of this action but the union’s permission is not required.  Failure to do so could result in a constitutional violation by the employer.
  2. Meet with union representatives, if requested, to discuss the effects of this change. Refusal to meet for purposes of discussing this issue could be an unfair labor practice.
  3. For employers with a maintenance of membership provision (requiring payment of dues for a certain term if voluntary), the employee likely has the right to stop paying dues immediately under the Janus case upon providing notice to the employer, even outside the window period for ceasing dues deduction. If the employee does not give such notice, these dues will be considered voluntary and should still be deducted.
  4. Employers should not solicit dues paying union members to stop paying dues. That is each employee’s decision.
  5. Be aware that some unions (including AFSCME) view the dues authorization card as a contract between the union and individual members. Some unions may try to enforce this alleged contract but that is a matter left to the union and its members.
  6. The decision does not change the union’s duty to fairly represent all members of the bargaining unit.

More information will be available as we see how unions respond to the decision. We will keep you up to date as developments occur. If you have any questions, please contact Marc Fishel at mfishel@fisheldowney.com