By: Mark H. Dellinger and Benjamin J. Wilson
On June 27, 2018, the Supreme Court of the United States ruled against public-sector unions by deciding that “agency fees”—payments made to the union by workers who are not union members that cover the costs of collective bargaining—are violative of First Amendment. You can read the opinion, Janus v. American Federation of State, County, and Municipal Employees, Council 31, here.
In ruling against the unions, the Supreme Court overturned a 41-year precedent set in Abood v. Detroit Board of Education, which had allowed public employers to require these agency fees of nonmember employees. Also known as “fair share fees”, the Abood court allowed the payments from nonmembers to cover union activities that were “germane to [union] duties as collective-bargaining representative”, but not those activities that were political or ideological in nature.
Justice Samuel Alito wrote that whatever fears that Abood was based on simply could not stand under First Amendment jurisprudence. “All these reasons—that Abood’s proponents have abandoned its reasoning, that the precedent has proved unworkable, that it conflicts with other First Amendment decisions, and that subsequent developments have eroded its underpinnings—provide the ‘special justification[s]’ for overruling Abood,” Justice Alito said.
Perhaps most importantly, the majority held that agency fees or other payments to the union could not be made or deducted from an employee’s payments unless that employee affirmatively consents to the payment. Because these payments invoke First Amendment rights, the “waiver” of those rights cannot be presumed. Instead, the employee must affirmatively consent and that consent must be shown by “clear and compelling” evidence.
The dissent, written by Justice Elena Kagan, sharply criticized the majority and predicted “large-scale consequences” since public unions will lose financial support and will have to “find new ways of managing their workforces.”
What Does This Mean Going Forward?
First, this is not a death knell for unions. Rather, public-sector unions are going to be much smarter about utilizing their resources, as well as showing employees what the unions have accomplished and can accomplish as representatives.
Next is the standard of affirmative consent. The Janus opinion appears to reject complex “opt-out procedures” sometimes utilized by unions. The affirmative consent standard seems to mirror other areas of law where a waiver of constitutional rights must be clearly invoked. Courts generally take this waiver very seriously and every presumption will be taken against a waiver of constitutional rights, unless shown by “clear and compelling” evidence.
Finally, what effect the Janus decision will have on the private sector remains to be seen. While Janus dealt with only public-sector unions, legal commenters have speculated that the private sector could be affected if there is a push for more right-to-work legislation. However, for the time being, Janus does not extend so far as to affect private-sector workers.