Janus v. AFSCME:  The Supreme Court Bans Agency Fees, but Can’t Ban Organizing

In a decision that will have significant impacts on Unions across the country, particularly those in the public sector, the U.S. Supreme Court struck down an Illinois law that allowed Unions representing public employees to collect agency (or “fair share”) fees from those electing not to join the Union to help cover the costs of providing representation to those employees, which Unions are required to do by law. 

The effect of yesterday’s decision is that going forward, Unions will only be allowed to charge public employees agency fees if the employee has affirmatively consented to pay.

The Court held that requiring public-sector employees to pay agency fees violates their First Amendment right to freedom of speech.  In a decision authored by Justice Alito, writing for the GOP majority (Roberts, Thomas, Kennedy, and Gorsuch), the Court reasoned that collective bargaining with government employers is inherently political because of the impact that it can have on public budgets.  Mandating that public employees pay a fee to the Union, according to the majority’s logic, results in certain employees being forced to fund political speech with which they disagree. 

This decision overturns the Court’s precedent from a 1977 case called Abood v. Detroit Board of Education, which allowed public sector Unions to require non-members to pay an agency fee to cover costs associated with collective bargaining, contract administration, and grievance adjustment, known as “chargeable” expenses, but not to cover more explicitly political or ideological advocacy, known as “non-chargeable” expenses. 

The current Court left little doubt that it will not hesitate to overturn its own precedent to favor employers and moneyed-interests over the rights of working people.  While the decision presents new significant challenges for American Unions, especially those in the public sector, Unions do not have to stand by as “black-robed rulers overrid[e] citizens’ choices,” as Justice Kagan put it in her powerful dissent.  Unions across the country have already put plans in place to grow their power despite Janus.  The Supreme Court cannot stop workers, in the public or private sector, from exercising their legal right to organize with their co-workers for better wages and working conditions.  In the end, Janus only reinforces what Unions already know—organizing new members is the only way to survive and thrive in our current political climate.

The Court only recently held speech in the workplace to be “unprotected.”  As a result, the majority in Janus tried to explain how it could conclude that public employees have First Amendment rights when it comes to being required to pay agency fees, but not when they express themselves in the workplace.  The majority distinguished Garcetti v. Ceballos, the recent case in which the Court found that public employee speech was not constitutionally protected, on the grounds that the speech at issue did not touch on a “matter of great public concern” as it does in the case of public-sector collective bargaining, which can “affect how public money is spent.”  However, in her dissenting opinion, Justice Kagan, joined by Justices Sotomayor, Ginsburg, and Breyer, pointed out that the Court’s prior cases did not turn so much on whether public employee speech was of public concern, but rather whether public employee speech “is about and directed to the workplace—as contrasted with the broader public square.”  By recognizing broader First Amendment protection for public-employee speech than the Court’s prior cases, Justice Kagan warned, “the majority is exposing government entities across the country to increased First Amendment litigation and liability—and thus preventing them from regulating their workforces as private employers could.”

As Justice Kagan wrote in her dissent, “There is no sugarcoating today’s opinion. . . . [T]he majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.” 

Unions across the country face this decision by continuing to reach out and connect with the employees they represent, building their strength back through organizing—including organizing voters for the next nationwide election. 

For more information regarding this case, contact your labor law counsel. 

By Eric Wiesner | June 28, 2018

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