Decades after the Supreme Court of the United States first upheld the constitutionality of “agency fees” – the right of public sector unions to charge non-union members a fee as a condition of employment – the Court has agreed to hear another challenge to such fees. The Court agreed to hear the case that targets a law in Illinois that compels workers to pay a reduced fee to a union regardless of whether the employee elects to join the union.
Approximately forty years ago, in Abood v. Detroit Board of Education, the Supreme Court upheld a Michigan law that compelled employees, who had opted out of union membership, to the pay a fee to the local union that collectively bargained for terms and conditions of employment that impacted the bargaining unit. The Supreme Court rationalized the fee based on the benefit that non-union employees received from the union’s collective bargaining efforts. Notably, the fee charged by the union to non-union employees was limited to the cost of activities that directly benefited the employees (i.e. collective bargaining). The Court rejected the idea that non-union employees should pay fees associated with the union’s political activity – noting that such an expansion risked infringing upon the non-union employees’ First Amendment rights.
Over the last four decades, various suits have challenged the constitutionality of “fair share” or agency fees, the most recent of which was Friedrichs v. California Teachers Association. Many scholars predicted that Friedrichs would result in the Court overturning Abood and opined that the split 4-4 decision resulted because of Justice Antonin Scalia’s death.
The addition of Justice Neil Gorsuch to the Supreme Court may impact the validity of laws that require non-union employees to pay reduced fees to the union. The Court has accepted the case of Janus v. AFSCME for considering this term. Janus was initiated by Illinois Governor Bruce Rauner and was subsequently joined by Mark Janus, a non-union state employee. Though Gorsuch does not have an extensive track record of union-related opinions, there is speculation that Gorsuch may lean to overturning Abood (thus, rendering agency fees unconstitutional).
We will keep you up to date with this important case and will alert you when the decision is issued (projected for June 2018).