Radical Shift Coming In Public Sector Agency Fees


On Monday, the Supreme Court took a swipe at public sector compulsory unionism. In doing so, the Court took a slice out of decades of Supreme Court jurisprudence and suggested a future re-thinking of agency fees in the public sector. In Harris v. Quinn, No. 11-681 (June 30, 2014), Illinois tried to facilitate home health care for those most in need and least able to afford it. The State created minimal guidelines for practitioners to qualify for the program, but otherwise the practitioners were hired, evaluated, and fired by their individual patients. Later, Illinois passed a law deeming the practitioners to be State employees for one purpose only: to have a single bargaining representative for matters related to the State. The practitioners sued, claiming that this compulsory unionism violated their Constitutional rights to association and free speech because it forced them to pay dues or agency fees to fund a union whose bargaining and political activities contradict their own beliefs and tenets. The Supreme Court struck down the Illinois statute, concluding that Illinois was not the practitioners’ true employer, and therefor could not force them to be members or pay agency fees to the union.

The issue is remarkably narrow and not likely to recur. However, most of the Supremes’ opinion addresses the larger issue of whether a public employer ever can require its employees to pay their “fair share” of union costs (often the equivalent of union dues) associated with collective bargaining and representation. According to the majority decision, the Supreme Court got it wrong forty years ago in Abood v. Detroit Board of Education, 431 U. S. 209 (1977) where it embraced agency fees for public sector unions. While the Court did not overturn Abood (because it did not need to do so in this case), the Court’s analysis signals the eventual demise of Abood and an end to compulsory agency fees in the public sector. This otherwise limited decision will produce a flurry of litigation as anti-union forces fashion the perfect case to finally undo Abood.


Written by:

Published In:

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.

© Sherman & Howard L.L.C. | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.