On Wednesday, June 27, 2018, the United States Supreme Court released its decision in the much-anticipated Janus v. AFSCME. In a 5-4 ruling, the Court held that public sector unions can no longer require nonconsenting workers to pay fees to cover the cost of collective bargaining. Unions must now obtain consent from nonunion employees before deducting "agency fees" or any other type of fee from public sector employee wages.
The Court first reasoned that forcing "free and independent individuals to endorse ideas they find objectionable" by requiring nonunion employees to pay union fees raises serious First Amendment concerns and warrants an "exacting" level of scrutiny. The Court then ruled that the state's interests in preserving labor peace and avoiding "free riders" were not sufficiently compelling to outweigh the employee's First Amendment rights. In so holding, the Court overturned Abood v. Detroit Board of Education, a 41-year-old precedent that justified forcing nonunion public sector employees to pay union fees based on the theory that (1) agency fees were necessary to avoid the conflict and disruption that would ensue if multiple unions represented employees in a single bargaining unit, and (2) without the ability to force nonunion employees to pay union fees, nonunion employees become "free riders" who benefit from union representation without shouldering the costs.
The decision likely invalidates 22 state "fair share" statutes that, until now, permitted unions to collect fees from non-members to cover the cost of collective bargaining activities. Public employers are cautioned not to interpret the Court's decision as providing carte blanche authorization to immediately suspend the collection of dues/fees from all employees currently represented by a union for the purpose of collective bargaining. Public employers should closely analyze the terms of the union security provisions in their respective current collective bargaining agreements to identify which employees may be entitled to the immediate cessation of dues/fees collection and those for whom the termination of dues/fees collection will first require the employee's procedurally compliant resignation from membership in the union.
As for those employees who have refrained from becoming members of the union but were compelled contractually and/or statutorily to pay an agency or service fee to their exclusive union representatives, a public employer is indeed now obligated to terminate its collection of such amounts effective as of the date of the Court's decision, absent the employee's affirmative consent to the deduction of the fees by a freely given waiver "shown by 'clear and compelling' evidence."1 In the interests of maintaining a harmonious relationship with their union representatives, public employers may choose to confer with the union in advance of effecting the termination of fees. A pre-termination conference could also address the calculation of the proportional amount of fees owed for the month of June, a mechanism for the union to retroactively refund overpayments, and the wording of an affirmative consent to the deduction of fees acceptable to the employer should a union indicate its intention to solicit waivers from current or prospective agency fee payers.
A majority of a public employer's represented employees are likely to be full-fledged members of the union holding their exclusive representation rights, either voluntarily or pursuant to a maintenance of membership clause contained in the union security section of the applicable collective bargaining agreement. As for this group of employees, it is to be expected that public sector unions will argue that those employees who are currently members of a union have freely and affirmatively consented to the payment of union dues and are not entitled to avail themselves of the right to avoid the imposition of union dues or agency/service fees pursuant to Janus until they have satisfied the union's internally imposed procedural requirements for resignation of their union membership. It is typical for such internal union procedures to include temporal restrictions on an employee's right to withdraw their membership (e.g., membership anniversary date or narrow withdrawal window coinciding with expiration of the collective bargaining agreement). The entitlement of current union members to terminate their dues obligation and the timing of their ability to exercise that right will likely depend on the language of the respective union security provision in the applicable bargaining agreement, the union's constitution, and/or a dues deduction authorization form, if any, signed by the employee. Public employers should consult with experienced counsel in the event they are uncertain whether the cessation of union dues or agency/service fees is appropriate under their particular circumstances.
[1] Janus v. AFSCME, 2018 WL 3129785, at *31 (U.S. 2018).