Last week the Supreme Court issued its long-awaited opinion in Janus v. AFCSME. It held that requiring public sector employees to pay fair share fees to unions violates the First Amendment. A fair share fee (sometimes called an agency fee) is a fee that non-union members must pay to the union to cover the expenses incurred by the union while representing an employee in collective bargaining and related matters. Fair share fees were often required under state law, despite the employee opting not to join the union, because unions have a legal obligation to represent all employees within the bargaining unit, regardless of whether the employee is a member of the union. These laws became common after the Supreme Court issued its 1977 opinion Abood v. Detroit Board of Education, which held that fair share fees were constitutional and maintained labor peace by preventing “free riders.”
In recent years, there have been increasing challenges to the constitutionality of fair share fees and the validity of Abood. Back in 2014, we discussed the Supreme Court’s ruling in Harris v. Quinn. The Court in Harris began to question the validity of Abood and its supporting rationale. As we noted, the Court came close to overruling Abood but ultimately decided Harris on its specific facts. It held that collection of the fair share fees in the specific context (personal assistants in Illinois) violated the First Amendment. In 2016, another challenge of fair share fees made it to the Court, only for Justice Scalia to die after oral argument, leaving a 4-4 split decision.
With Justice Gorsuch now on the bench, as was foreshadowed in Harris, the Court ruled that fair share fees violate public sector employees’ right to free speech. As a basic premise, the Court recognized that the right to free speech includes the right to refrain from speaking at all. Thus, “[c]ompelling individuals to mouth support for views they find objectionable violates the cardinal constitutional command, and in most contexts, any such effort would be universally condemned.” Accordingly, forcing employees to pay fair share fees (i.e., compelling employees to speak when they may otherwise remain silent) violates the First Amendment. Finally, the Court overruled Abood, dissecting and dismantling its labor peace and free rider justifications.
The end result of the Court’s holding is clear: “States and public-sector unions may no longer extract agency fees from nonconsenting employees. . . . Neither an agency fee nor any other payment to the union may be deducted from a non-member’s wages, nor may any other attempt be made to collect such payment, unless the employee affirmatively consents to pay.” The Court recognized that the loss of these payments would cause unions to “experience unpleasant transition costs in the short term,” but it did think that such a challenge justified continued constitutional violations. Rather, it pointed out that such a disadvantage must be weighed against the considerable windfall that unions received in fair share fees in the 41 years after Abood.
Surely there will be questions that follow. Will unions continue to participate in public sector workforces? Is there a process for employees who now want to opt out of union membership? Do public sector employers now negotiate separately with non-union members? All of these questions may take time to resolve and consultation with legal counsel.