Requiring Public Employees to Pay Union Agency Fees Found Unconstitutional – Potentially Striking A Major Blow To Union Purses And InfluenceOn June 28, 2018 by Schnader in Appellate
By Rachel A.H. Horton and Michael J. Wietrzychowski
In a widely-anticipated decision, the United States Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31, narrowly held that the First Amendment of the United States Constitution prohibits public sector unions from charging public employees an agency fee where an employee wants no part of union representation – absent the employee’s clear consent.
In many states, once a majority of public employees vote for a union to represent them in terms and conditions of employment vis-à-vis their public employer, all employees – even employees who did not vote for or objected to the union – fall within the sphere of union representation. Employees who choose not to be in the union can opt out of union representation and not pay full union dues, but 22 states allow public sector unions to automatically charge objecting employees an “agency fee” for a portion of union services unrelated to political and other non-representative functions – even where the employee objected to paying anything because the employee did not agree with the political views and actions of the union. Unions typically calculate the agency fee as a percentage of the full union dues, and in Janus, nonmembers paid an annual fee that was 78 percent of full union dues.
Rejecting the mandatory payment of agency fees, the Supreme Court reasoned that a public employee’s First Amendment right to not pay fees to a union whose political views it did not support trumped reasons behind such laws, such as labor stability, preventing “free riders” – employees enjoying the ancillary benefits of having a union without joining and paying, and the disruption the prohibition of such laws could potentially cause in the 22 states that permit unions to charge agency fees.
The Court’s decision likely will deal a huge blow to the coffers of public sector unions in the states where these unions mandate employees pay an agency fee without employee consent. As a result, these unions will have fewer dollars to allocate to political campaigns, organizing activities, payroll, and other union functions – thus eroding the influence these unions wield in the political landscapes of these states. Public unions going forward will have to convince dissenting public employees that the benefits of representation are worth their individual investment. The decision also signifies the Court’s continued willingness to review and overturn prior Supreme Court decisions and laws that historically have been highly beneficial to unions.