On June 27, the Supreme Court issued a 5-4 opinion in Janus v. American Federation of State, County, and Municipal Employees, Council 31, Dkt. No 16-1466, holding that compulsory payment of public-sector union fees by non-union members violates First Amendment free speech rights.

The petitioner in Janus, challenged the constitutionality of an Illinois law requiring public employees to pay union agency fees, despite an employee’s choice not to join the union and his strong objection to the union’s positions in collective negotiations. The petitioner argued that the payment of mandatory agency fees by nonmembers in connection with collective negotiations for government employees is inherently political and violates the First Amendment. Siding with the petitioner and striking down the Illinois law, the Supreme Court overturned its prior 1977 decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

In Abood, the Supreme Court held that a union could constitutionally collect from dissenting employees financial support for collective negotiations so long as the fees were not used for ideological or political causes not germane to the union’s duties as the collective negotiations agent. In the Janus opinion, Justice Samuel Alito wrote that “Abood was wrongly decided and is now overruled,” concluding that the mandatory payment of public-sector agency fees violates the free speech rights of nonmembers by compelling them to subsidize private speech. Under Janus, “States and public-sector unions may no longer extract agency fees from nonconsenting employees.” However, the Court stated that unions could require payment from nonmembers for union representation in disciplinary matters and grievances.

The Janus decision leaves open the specific timeframe by which an employee may revoke compulsory payment of public-sector union fees.

For New Jersey public employers, the Janus decision must be applied in light of the requirements of the recently enacted Workplace Democracy Enhancement Act (“WDEA”). The WDEA includes requirements regarding an employee’s withdrawal of consent for the union to collect agency fees. Additionally, the WDEA prohibits public employers from encouraging employees to revoke their union fee deductions and from discouraging employees to join, form or assist a union. Public employers should be prepared to receive employees’ withdrawals of consent and should continue to follow the current statutory WDEA requirements.