Supreme Court Rules “Fair Share Fees” Unconstitutional

By Jennifer A. Dunn, Melissa D. Sobota, and Erin K. Walsh - Franczek Radelet P.C.

June 27, 2018

As widely anticipated, the U.S. Supreme Court just held by a 5-4 vote that fair share agreements are unconstitutional. (Janus v. AFSCME). The decision is effective immediately and requires all public bodies to cease deductions from their fair share members.

Janus addresses whether government employees who are represented by a union to which they do not belong can be required to pay a fee to cover the costs of collective bargaining. The plaintiff argued that having to do so violates his First Amendment rights. The Supreme Court agreed and held that the public-sector unions’ procedure of exacting fair share fees from nonconsenting employees violates the First Amendment. The Court reasoned that forcing free and independent individuals to endorse ideas that they find objectionable raises serious First Amendment concerns, which cannot be validated by Abood’s two justifications for agency fees (labor peace and avoiding the risk of free riders). In so holding, the Supreme Court overruled Abood, finding its holding inconsistent with standard First Amendment principles:

"Overruling Abood will also end the oddity of allowing public employers to compel union support (which is not supported by any tradition) but not to compel party support (which is supported by tradition)."

Justice Alito delivered the majority opinion, which was joined by Justices Roberts, Kennedy, Thomas, and Gorsuch. Justice Kagan filed a dissenting opinion, which was joined by Justices Ginsburg, Breyer and Sotomayor. Justice Sotomayor also filed a separate dissenting opinion.

Public Employers Must Take Immediate Action!

If an employer deducts any fair share fees from employee paychecks after today, the employer must reimburse those deducted fees to each impacted employee. Employers should match their records of fair share fee paying employees with the records of the union to ensure there is consistency and accuracy on which employees will no longer have dues deducted from their paychecks. This decision does not change an employer’s obligation, should there be dues deduction obligations in the collective bargaining agreements, to continue to deduct dues from regular union members.

If employers decide to send out a communication to employees about the decision, the communication should contain only factual information and should not express any opinions about the decision, unions, union dues, or employee decisions to be members or not. Employees inquiring about terminating membership or becoming full members, etc. should be directed to the union or Labor Relations Boards. Managers and supervisors should be directed not to advise employees on these inquiries.

The Illinois Public Labor Relations Act and the Illinois Educational Labor Relations Act require unions to represent everyone in the bargaining unit, even those that are no longer paying fair share fees (commonly called the “duty of fair representation”). Thus, the unions will remain the exclusive representative of all bargaining unit members. We anticipate some unions may challenge their duty of fair representation in court. We will continue to monitor ramifications of the Janus decision and will provide updates accordingly.