Fair Share Fees Unconstitutional in the Public Sector? Not So Fast

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The United States Supreme Court has been issuing employment-law related decisions like a boss over the past week or so. Many observers thought that the Court's decision in Harris v. Quinn (pdf), a case examining the constitutionality of union fair share fees, would result in more fireworks (sorry, a little 4th of July humor for you). However, in most respects, Harris was a dud.

The issue in Harris was whether a requirement that public sector employees pay "fair share" fees to a union was compelled speech in violation of the First Amendment. Fair share fees are fees that non-union members must pay to the union in order to reimburse the union for the costs of representing the employees in collective bargaining and related matters. These fees are required even though the employee is not an actual member of the union because, under the law, the union has the obligation to fairly represent all employees, whether or not the employee is a member of the union. The payment of fair share fees is typically authorized by state law. In those states where fair share fees are authorized by law, non-union member employees are typically forced to pay the fair share fee.

That was the case in Harris, which dealt with a specific group of employees, Personal Assistants (PAs), who provide in-home personal care services funded by Medicaid. Although employed by the individual to whom they are providing care, PAs are also employees of the state of Illinois by operation of state law. In addition, under Illinois law, PAs were permitted to form a union and nonmembers could be compelled to pay fair share fees. The PAs were represented by the Service Employees International Union and several of the non-union member PAs took issue with the required payment of fair share fees to a union that they did not support.

The Supreme Court has previously held fair share fees to be constitutional as they can assist in keeping labor peace and prevent non-dues paying employees from "free-riding "on the backs of dues-paying members. The majority in Harris really dismantled this prior case law and concluded that these justifications for the payment of fair share fees were not sufficient to overcome a First Amendment challenge. However, the Court came up short of expressly overruling its 1977 decision in Abood v. Detroit Bd. of Educ., which had declared fair share fees constitutional.

The Court decided Harris based on its specific facts, and held that the PAs were in a unique situation. The Court held that the justifications supporting fair share fees were not sufficient to overcome the challenge with respect to the PAs. The Court found that the labor peace justification was flawed. In addition, the Court found that the union was limited in the ability to negotiate on behalf of the PAs, and therefore, the free-riding concern was not that significant with respect to the PAs. Therefore, the Court concluded that, in this specific situation, the First Amendment prohibits the collection of the fee from PAs who do not want to join or support the union.

Although somewhat factually complicated, the Harris case had the potential to send shock waves through the public sector labor community. If fair share fees were declared unconstitutional, public sector unions would have suffered a significant negative financial impact, and as a result, their political clout would have likely been significantly diminished.

In the end, it appears that this was a case of much Abood about nothing (sorry a little stare decisis humor). Fair share fees in the public sector survive in most cases, for now. The Court did significantly undermine the legal precedent upon which fair share fees stand and that could mean a change in the future. But for now, fair share fees are constitutional in the vast majority of cases.

 

Topics:  Corporate Counsel, Fair Share Law, Harris v Quinn, Healthcare, Healthcare Professionals, Physicians, SCOTUS, Unions

Published In: Constitutional Law Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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