The end of the recent U.S. Supreme Court term brought with it the most consequential labor law ruling in recent memory. On Wednesday, June 27, 2018, the Court held that public sector employees who are represented by a union, but are non-members of the union, cannot be compelled to pay money to cover the union’s cost of representing the non-member. In a major victory for opponents of organized labor, the Court overruled long-standing precedent allowing public sector unions to compel so-called “agency” or “fair share” fees from non-consenting members.
By way of background, when a union is designated as the exclusive bargaining representative for a group of employees, individual employees may opt out of joining the union. However, in many states, including Connecticut, non-member employees of a government bargaining unit are generally still required to pay what is known as an “agency fee,” i.e., an amount of money that is usually less than member union dues. The union can then use those agency fees for a variety of reasons, including political lobbying for positions that employees may not agree with.
In Janus v. AFSCME, Council 31, No. 16-1466, the petitioner Mark Janus worked for an Illinois state agency. Janus’ job position was covered by a union bargaining unit, but he was a non-member, and he opposed many of the union’s political positions. He therefore challenged the union’s ability to compel an agency fee to cover the cost of representation. Janus’ main argument was that compelled agency fees were a First Amendment violation because it amounted to coerced political speech.
Justice Samuel Alito authored the majority opinion and agreed that compelled agency fees are a violation of First Amendment free speech rights. Justice Alito brushed aside the possibility of a “free rider” problem, reasoning that “the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.” Justice Alito did leave the door open to agency fees where an individual “clearly and affirmatively consent[s]” before deduction of such fees.
As Justice Elena Kagan noted in her vigorous dissent, the Court’s decision likely “wreaks havoc” on existing labor contracts affecting millions of government employees. Public sector unions should expect to see a decline in the number of non-members paying agency fees. Consequently, public sector unions are faced with the daunting task of making necessary adjustments to attract and retain members to fund union dues.
Connecticut public sector employers should consult with labor counsel to identify immediate ramifications, as the impact of Janus must be assessed on a case-by-case basis. While compelled agency fee provisions are now unconstitutional, employers must assess whether employees have already provided affirmative consent to such payments. Employers should expect to see at least some consenting employees revoking such consent.
Janus is certain to have far-reaching consequences, many of which are yet to manifest. With Justice Anthony Kennedy’s retirement and the likely shift to a more conservative Supreme Court, subsequent labor law decisions are likely to further curtail union activity in general. While Janus represents a sea-change in labor law, the full impact upon organized labor as a whole is yet to be realized.