On February 26, 2018, the United States Supreme Court heard oral arguments in the case Janus v. Am. Fed’n of State, Cty., & Municipal Employees, Council 31. The plaintiff, Janus, is an Illinois state employee and eligible for union membership, but he declined to join. Members of the union pay union dues to pay for collective bargaining, contract administration, and grievances. However, as a condition of employment, non-union members are required to pay agency fees—the so called “fair share” fee—for the benefits obtained for employees by the union. The issue in Janus is whether forcing a non-union member to pay agency fees to a union violates the employee’s 1st Amendment right of free speech.
The law currently permits public sector unions to collect agency fees to finance representation activities (e.g. collective bargaining) under the U.S. Supreme Court’s 1977 ruling in Abood v. Detroit Board of Education. However, under Abood, public unions may not use agency fees to fund political activities. Janus contends that negotiating terms and conditions of employment in the public sector (e.g. compensation) is inherently political and therefore violates his 1st Amendment free speech rights by forcing him to pay fees to the union.
Notably, the ascension of Justice Neil Gorsuch, a conservative judge, to the Supreme Court, has many experts predicting that the Court will overrule Abood and deal a significant blow to unions. If the Supreme Court rules that agency fees are unconstitutional, there will be far-reaching impacts. Such a decision certainly will diminish the political influence of unions as unions stand to lose financial resources from agency fees. In addition, the Janus decision will impact thousands of public sector collective bargaining agreements if it rules that agency fees are unconstitutional.
The Court’s decision in Janus is expected in June when the current Court term ends. We advise all of our government clients to review their current collective bargaining agreements and contact Stock and Leader’s Employment Attorneys to discuss any concerns over the potential impact on these agreements should Janus determine that agency fees are unconstitutional.