As was widely expected, the United States Supreme Court has held that mandatory agency fees for public sector employees are an unlawful violation of individuals’ free speech rights under the First Amendment to the U.S. Constitution. The 5-4 majority opinion in Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., No. 16-1466, 585 U.S. ___ (June 27, 2018), written by Justice Alito, overturned Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), a 40 year-old precedent, which had upheld forced union fees as serving legitimate state interests. The Janus majority rejected that view and other arguments based on the doctrine of stare decisis (respecting established precedent), citing flaws in Abood’s reasoning as well as changes in the legal and economic landscape in the intervening years. The majority found that the infringement on government workers’ free speech rights from compelling such fees, also known as “fair share fees,” far outweighs any valid state interest in imposing them. Justices Kagan and Sotomayor both wrote dissenting opinions.
While the outcome of Janus was largely expected, the practical implications remain to be seen. It is expected that Janus will take a heavy toll on public employee union finances. At the same time, however, many labor organizations have been preparing for an unfavorable result and have been exploring a range of measures to mitigate the loss of mandatory agency fees from non-members, ranging from alternative methods for dues payments to revisiting their entire model for organizing workers. In addition, a number of government employers, which were in favor of reaffirming Abood, have indicated that they may consider legislative or regulatory action to ensure that unions are able to serve effectively as the exclusive representative of all bargaining unit members notwithstanding the loss of funding from a substantial portion of the unit.
We will be closely monitoring reactions to Janus as they develop, and we are available to help public employers assess the impact of this landmark decision on their own collective bargaining relationships.
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