SUPREME COURT OPINION ALERT: Public-Sector Unions May No Longer Force Nonmembers to Pay “Fair Share” Fees

Today, the Supreme Court decided a case called Janus, which involves whether public-sector unions (for employees such as teachers, police, firefighters, etc.) can require non-union employees to pay so-called “fair-share” fees to the union when the employees disagree with the political messages the union advocates.  (We previewed the case here.)  In a 5-4 decision, and in an opinion written by Justice Alito, the Court ruled against the union and struck down the practice as unconstitutional.

By way of background, a state cannot force a public employee to be a member of a union.  And, a state cannot force a nonmember to pay full union dues.  The rationale for those two rules is that, because unions frequently engage in political activity, support candidates for public office, and take stances on matters of public concern, people being forced, as a condition of public employment, to associate with or give money to an organization with whom they’d rather not associate or whom they’d rather not support  is a violation of the First Amendment.

Before today, what states could do was require non-union members to pay “fair-share fees” or “agency fees.”  Those fees had to be for non-political, employment-related activities, like negotiating with management for higher wages, better working conditions, etc.  The reasoning for that rule was that, without those fees, non-union employees would reap the benefits of the union’s collective-bargaining power without paying for it (often called the “free-rider problem“) because unions must negotiate for all employees, not just union members.

The specific case today involved an Illinois law that required public employees to pay these fair-share fees, which amounted to about 80% of full union dues.  The union had to provide an accounting to nonmembers showing what those fair-share fees paid for.  The listed expenses that nonmembers were required to support included lobbying, social and recreational activities, advertising, membership meetings and conventions, litigation, and “other unspecified services.”  The question was whether forcing public employees to pay for these activities violates the First Amendment.

The Supreme Court’s answer was yes.  Justice Alito wrote that “significant impingement on First Amendment rights occurs when public employees are required to provide financial support for a union that takes many positions during collective bargaining that have powerful political and civic consequences.”  He quoted Thomas Jefferson, saying that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.”

Justice Kagan dissented, along with Justices Ginsburg, Breyer, and Sotomayor.  Justice Kagan wrote that the Court’s decision will have dire consequences.  “Public employee unions will lose a secure source of financial support.  State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces.  Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.”

Note: Today’s decision only affects public-sector unions (such as teachers, police, firefighters, etc.); it does not affect private-sector unions (such as auto workers, miners, etc.).

Case: Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, No. 16-1466 (U.S. June 27, 2018) (opinion here)

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