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Fair Share' Fees Ruled Unconstitutional

Recommended Immediate Steps

Published on: Fri 29th Jun, 2018 By: Patrick Harvey

In a widely anticipated blow to public sector unions, the U.S. Supreme Court ruled today that “fair share” fees collected from non-union members are unconstitutional under the First Amendment. Specifically, the Court held in a 5-4 decision that these fees violate “the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” The Court also stated that an employee must affirmatively consent to any payment to a public sector union before any attempt is made to collect such a payment. Public employers who are currently deducting fair share fees should immediately cease fair share payroll deductions in consultation with labor counsel.

To briefly recap the case, in Janus v. American Federation of State, County, and Municipal Employees, Council 31, an Illinois state government employee, who had opted out of union membership and was upset with his monthly fair share payroll deduction, challenged the fee as a violation of his First Amendment rights. The Supreme Court accepted the employee’s argument that bargaining issues for public employees are inherently political because any such fair share fee paid to the union effectively financed speech intended to influence government personnel policies. The Court ruled that the mandatory deduction of the fair share fee required a public employee to subsidize a union lobbying group.

The decision by the Supreme Court, written by Justice Alito, overturned its 1977 decision in Abood v. Detroit Board of Education, which allowed unions to require non-members to pay a fee to prevent “free-riders” who benefit from union negotiations without having to pay for the benefit. That precedent existed for more than 40 years, and had been unsuccessfully challenged in recent years until the Court’s decision in Janus. The Janus Court now overrules Abood, with Justice Alito writing that Abood was “poorly reasoned” and that “fundamental free speech rights are at stake.” Applying a balancing test of public employees’ First Amendment interests and the state’s asserted interest in Abood—promoting “labor peace” and avoiding “free riders”—the Court explained that experience has demonstrated that unions can be effective even without agency fees.

It is important for public employers to note that contractually required union dues payroll deductions must still be deducted from the paychecks of union member employees. However, since fair share non-union member dues payroll deductions are no longer lawful, municipalities should take immediate action to stop such payroll deductions and to immediately notify applicable unions that the municipality is doing so.

Campbell Durrant attorneys are standing by to assist municipalities in reviewing all applicable contract language, drafting appropriate notices to unions regarding the suspension of fair share dues deductions and assisting with the legal and practical mechanics of terminating the now unconstitutional fair share payroll deductions.