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Supreme Court: Public sector workers can’t be forced to pay union fees

06/27/2018

Union feesIn a major blow to organized labor, the U.S. Supreme Court ruled June 27 that public-sector employees who refuse to join a union cannot be required to pay so-called “fair share” fees in lieu of union dues. The court’s 5-4 ruling overturned a 40-year precedent and said that forcing such payments was unconstitutional. (Janus v. AFSCME)  

Expect the decision to substantially weaken public-sector unions, which will likely see a large drop in funding. In turn, that could mean less political clout for unions, which have traditionally supported Democratic candidates.

With the Janus ruling, the Supreme Court overturned a 1977 decision that said it was legal to require workers to pay a proportionate share of regular union dues equal to the costs associated with the union’s collective bargaining efforts (rather than its political efforts).

Janus focused on an Illinois law—similar to laws in 22 other states—that let public-sector unions collect a fee from employees for collective bargaining and other nonpolitical activities, regardless of whether those workers belong to the union. (The other 28 “right to work” states prohibit fair-share fees.) The ruling says state laws permitting fair share fees violate an employee’s First Amendment free speech rights if they force the employee to sacrifice a portion of earnings to support any union activities, even if they directly benefit the worker.

In the case, Illinois state employee Mark Janus didn’t join the American Federation of State, County and Municipal Employees. However, he was still required to pay $45 to the union each paycheck. Janus sued, alleging that by allowing the confiscation of part of his earned income, the state was forcing him to support the union’s messaging, thus violating his First Amendment rights. Janus won.

“Neither an agency fee nor any other payment 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,” wrote Justice Samuel Alito, Jr., for the majority.

Union groups criticized the ruling. Lily Garcia, president of the National Education Association, called it a “blatant slap in the face for educators, nurses, firefighters, police officers and all public servants.”

Recently, many state legislatures have adopted right-to-work laws that limit public employees’ collective bargaining rights. According to attorney C. Thomas Davis of Ogletree Deakins, the new ban on the mandatory collection of fair-share dues “could have a further significant effect on the financial stability of public sector unions.”

Further complicating the future of Supreme Court employment-law rulings … Also on June 27 , Supreme Court Justice Anthony Kennedy announced his retirement from the bench.

Kennedy, 81, provided the crucial fifth vote in the Janus decision and has been the swing vote in many 5 – 4 rulings in recent years. He was nominated by President Reagan in 1988. A staunch conservative on most issues, Kennedy nevertheless cast key deciding votes (and wrote the majority opinions) in many hot-button cases, including the 2015 Obergefell decision that legalized gay marriage nationwide.

President Trump will now nominate a replacement for Kennedy, setting up the potential to establish a solid conservative majority on the bench. Republican leaders in the Senate say they will push for a vote this fall. With only 49 Senate votes, there is little Democrats can do to stop eventual confirmation of whoever Trump nominates.