With a Swipe of the Pen, the Supreme Court Makes All U.S. Public Sector Employers Right-To-Work

The Court kept us waiting as long as possible, but it finally came to a decision this morning in the case of Janus v. AFSCME, Council 31, and sounded a death knell for fair share fees for public sector employees.

By this point, we are all familiar with the issues of the case – Janus, a state employee working in Illinois, enjoying the wages and benefits afforded him by his union’s negotiations, argued that the negotiation that takes place on his behalf was speech unto itself, which he did not support. Furthermore, Janus was required to pay fair share fees into the union that negotiated his wages. As such, he argued that such required payment subsidized political speech, and violated his right to free speech.

At the time of the ruling, 22 states have laws that require agency or fair share fees. On the other hand, there are 28 states and the federal government that are so-called “right to work” jurisdictions, which do not require that such fees be paid.

While this issue was heard and decided in Abood over 40 years ago, the Supreme Court, with its Trump-appointed fifth conservative Justice Neil Gorsuch, went against that decision and reversed the decision of the lower court, finding fair-share fees as unconstitutional infringements on Janus’s free speech rights protected by the First Amendment. In coming to its decision, the Court stated there were “very strong reasons” for not following precedent, namely, that “Abood was poorly reasoned,” “led to practical problems and abuse,” and was “inconsistent with other First Amendment cases.”

The Court applied the “exacting” standard (which is less stringent than the “strict scrutinty” standard) because it determined that the agency fee requirement had a “widespread impact on employee speech rights.” Next, the Court reasoned that the negotiation of wages and benefits is a matter of public concern, due to its impact on taxes, education policy, public spending and staffing.

Finally, the Court summarily dispatched the State’s interests in allowing for agency fee payments from its employees, and found that “the balance tips decisively in favor of the employees’ free speech rights.” One of the primary bases for its decision was that union organizing in the public sector still occurs in right to work jurisdictions like the federal government.

What the Holding Means for Public Employers

As it pertains to public employers, the ultimate finding of the Court was as follows:

“Neither an agency fee nor any other pay¬ment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Johnson v. Zerbst, 304 U. S. 458, 464 (1938); see also Knox, 567 U. S., at 312–313. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Curtis Publishing Co. v. Butts, 388 U. S. 130, 145 (1967) (plurality opinion); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 680–682 (1999). Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”

Therefore, if you have employees who have affirmatively consented to dues being deducted from their paychecks and going to the unions directly, you can use that consent as an affirmation of an employee’s willingness to continue having dues deducted from their paychecks. However, if no consent has been received, a change needs to be made immediately before any further dues are taken out. Public employers should communicate with their union groups to obtain lists of employees that have not provided such consent, and cease deducting union dues from those employees. We advise clearly communicating with the unions regarding these changes and seeking a cooperative exchange of information.

We hope that you, as public employers, have been preparing for an outcome such as this (it was almost a foregone conclusion once Justice Gorsuch was affirmed). We’ve advised you to have conversations with your union representatives on steps to take in the event of this decision, and the changes you have decided to take need to be implemented immediately. If you have not spoken with union representatives, we advise you do so immediately to avoid any possible constitutional violations. This is a case with serious repercussions for everyone working in public employment, and you do not need to be on the wrong end of a lawsuit following this tidal shift in the way unions do business.

How Can Unions Collect Fees?

In striking down Illinois’s agency fee law, the Janus Court did made some interesting suggestions for the union, such as requiring nonmembers to pay for service or denying union representation to nonmembers. We will look to see for further development of ideas from unions representing employees on attempting to recoup some of their expenses in effort to recoup some of the revenues lost due to the Janus decision and continue attempt to effectively represent their members.

What of Your Current Collective Bargaining Agreement?

Another question you might have is what happens to your collective bargaining agreement now that the dues portion of the contract could be considered illegal? In our experience, most contracts have a Savings Clause, which protects the remaining portions of the agreement that are not found to be illegal. If you do not have a section of your agreement that covers such isues, we recommend you give your attorney a call to figure out what steps you should take regarding the legality of your agreement.

As always, if you have any questions at all on how to proceed, feel free to contact the Wiley Law Office at any time for specific advice.