Before the end of the term (likely late June 2018), the Supreme Court of the United States is set to make its decision on the Constitutionality of agency fees for public employees in the case of Janus v. AFSCME, Council 31. As this case could have serious implications for both public sector employers as well as public sector unions, now would be a good time to go over where the issue currently stands and the implications of the possible court holdings.
Current Law –Abood
The original case to decide the question of whether agency fees for public employees were unconstitutional was Abood v. Detroit Board of Education. In that case, the Supreme Court decided that as long as the monies collected by unions were going towards the negotiation of terms and conditions of employment, there was not an overriding Free Speech interest being denied to employees who did not wish to be voting members of the Union. This decision has stood for over 40 years, and it has been relied upon in several other cases regarding Free Speech issues.
In the last few years, the Court’s decision in Abood has come under fire by both public employees as well as Free Speech advocates. In 2016, the Court was close to overturning Abood in Friedrichs v. California Teachers Association, when the untimely death of Justice Antonin Scalia led to a 4-4 decision that reverted to the lower court’s decision upholding Abood.
Mark Janus, a public employee from the state of Illinois, also challenged the Constitutionality of agency fees, stating that while the “fair share” fees collected by unions are not to go to political causes, even the normal terms and conditions of employment negotiated by unions are “inherently political,” in that they influence government personnel policies. Basically, Janus is arguing that his paying of agency fees is subsidizing political speech, when he would prefer to keep silent.
Based on reviews of oral arguments in front of the Supreme Court, Janus’s argument has gained some steam with the more conservative justices on the Court. The lone wild card on the bench is new Justice Neil Gorsuch, who remained silent during the entire oral argument, refusing to tip his hand as to which way he would decide. However, given the fact Gorsuch was nominated during the current presidential term, there is a strong possibility that he could be leaning towards a similar mindset as his conservative brethren. As such, it is necessary for both employers and unions to prepare for an historical sea change in how Unions collect fees for their services.
For the full history of the Janus case, click here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/16-1466.html.
If, as we are all expecting, the Court comes down with a decision that limits a Union’s ability to collect dues from non-member employees in some manner, how are you, as the employer, to respond? Well, per usual, the answer from we attorneys is, “It depends.” What does the “Check Off” or “Union Security” article of your collective bargaining agreement say? Most likely, it says something along the lines of the following:
The Employer agrees to deduct once each month dues from the pay of those employees who individually request in writing that such deductions be made. The amounts to be deducted shall be certified to the Employer by a representative of the Union and the aggregate deductions of all employees shall be remitted together with an itemized statement to the representative by the first of the succeeding month after such deductions are made or as soon thereafter as is possible.
The Union agrees to indemnify and hold the Employer harmless against any and all claims, suits, orders, or judgments brought or issued against the Employer as a result of any action taken or not taken by the Employer under the provisions of this Article.
There are a couple things to take notice of in these two paragraphs. First, this is an agreement between the Employer and the Union, not an agreement between the Employer and each individual employee. As such, the Employer needs to uphold its end of the agreement by standing by the terms to which it has agreed, and, per statute, stay out of the business between the Union and its members. Minn. Stat. §179A.13 makes it an unfair labor practice for an employer to dominate or interfere“with the formation, existence, or administration of any employee organization or contributing other support to it.” Cutting off dues payments to an employee organization without any notification from the Union could be viewed by a Court as direct interference in the administration of the Union.
Second, the language also gives an employee the right to authorize the deduction of dues from her or his pay. It could be argued (rightly we think) that if an employee has the right to authorize the deduction of dues, the employee may have the right to revoke the authorization as well.
Finally, the Article includes a paragraph guaranteeing the indemnification of the Employer in case an employee sues over what they believe to be a wrongful deduction of dues. Such language would protect an employer from any monetary awards against the employer, but would not eliminate the employer’s need to hire an attorney to defend itself in court prior to a judgment.
Given the possible outcomes that could flow from a judgment against an employer and union for possible Constitutional violations, we are advising all clients to speak with your respective union representatives about their plan for dealing with the potential Court decision deeming fair share dues unconstitutional. You have been working with these groups on some harmonious level for a very long period of time. They are most likely more concerned about the legal ramifications for them if they wrongly charge an employee for dues after the decision comes down than you. Together you should be able to come to an understanding of what actions they wish for you to take, and they should understand the areas of your concern, based on the language of your collective bargaining agreement. That plan should be in place so it can be effective immediately, as the Court’s decision might come any day now.
If you are unable to come to an agreement, however, or need further clarification on the possibilities of the Janus decision, we are always available to help. We will be keeping a close eye on the proceedings and ready to give advice as soon as a decision comes down.