U.S. Supreme Court Rules Public Sector Unions Cannot Force a Non-Union Employee to Pay Agency or Fair Share Fees

In a much-anticipated decision, the U.S. Supreme Court has held the compulsory payment of agency or fair-share fees to a union by non-union public sector employees is unconstitutional. In Janus v. AFSCME, Council 31, et al., _____ U.S. _____ (June 27, 2018), the Court overturned its 1977 decision in Abood v. Detroit Board of Education, which had approved the collection of such fees for the supposed purpose of covering the union’s collective bargaining costs.

In the instant case before the Supreme Court, Janus had argued that his $45 monthly fee to the American Federation of State, County and Municipal Employees (AFSCME) was unconstitutional.  He argued those fees infringed upon his First Amendment rights, and that, in the case of public employees whose contract is with a governmental agency, the fees were a form of political advocacy.  The majority of the Supreme Court, in an opinion written by Justice Samuel Alito, agreed with Janus’ contention that agency fees are a violation of a public-sector worker’s free speech rights. Specifically, the Court held, “[t]he First Amendment is violated when money is taken from non-consenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, 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 such fees.”

The Court held that forcing free and independent individuals to endorse ideas they find objectionable raised serious First Amendment concerns and that agency fees compel a person to subsidize the speech of other private speakers.  Further, the Court held that the Abood decision’s justifications for agency fees failed to override the Court’s overwhelming First Amendment concerns. Specifically, with respect to the argument that such fees promote an interest in labor peace, the Court noted that the Abood Court’s reasoning that conflict or disruption would occur if employees were represented by more than one union was unfounded inasmuch as an exclusive representative of all employees in a unit and the payment of agency fees are not in inextricably linked. Further, the Court majority noted that the Federal government and 28 states have laws prohibiting agency fees and that millions of public employees are represented by unions in those jurisdictions that effectively serve as the exclusive bargaining representatives of all employees, union and non-union alike.  Thus, the Court observed it has been clearly demonstrated since the Abood decision that despite such laws, labor peace has been readily achieved through less restrictive means than the assessment of agency fees.

Addressing the argument that individuals not paying such fees would get a free ride for union representation, the Court pointed out that such risk is not a compelling interest and that free rider arguments are insufficient to overcome First Amendment objections. The Court again noted that in non-agency fee jurisdictions, unions are quite willing to represent non-members in the absence of agency fees and that their duty of fair representation is a necessary time concomitant of the authority that a union seeks when it chooses to be the exclusive representative of public employees.

The majority decision was joined by Chief Justice Roberts, as well as Justices Kennedy, Thomas and Gorsuch. Justices Kagan, Sotomayer, Ginsburg and Breyer joined in dissent.

This decision is a huge victory for non-union public-sector employees in states where laws have compelled such non-union employees to pay fees to a union they did not belong to and, more often than not, expressed political opinions contrary to the employee’s political opinions.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.




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Kevin has more than 30 years of experience representing management in all aspects of labor and employment law. He has worked closely with clients across a wide range of industries throughout the country.