Janus v. AFSCME: The End of Fair Share Fees for Public Sector Employees

On Wednesday morning, June 27, 2018, the United States Supreme Court issued a decision in Janus v. AFSCME Council 31 (No. 16-1466) declaring “fair share” fees for public employees unconstitutional. The decision overruled the Court’s 1977 decision in Abood v. Detroit Board of Education, the precedent under which fair share fees had been allowed for over 40 years.

In light of the Court’s decision, we are advising all of our public sector clients tocease all deductions from employees’ pay for fair share fees as of June 27, 2018.

In addition to ceasing deductions for fair share fees, employers also should communicate with fair share bargaining unit members and the applicable union leadership to inform them of the changes.

Janus dealt with an Illinois law which authorized the collection of “agency fees” (similar to the fair share fees in Pennsylvania) from public employees even if they chose not to join the union. The plaintiffs, including state employee Mark Janus, argued that being forced to pay agency fees to support the union, with which they often disagreed, violated their First Amendment rights to free speech. The United States Supreme Court agreed. In his majority opinion, Justice Alito rejected the notion that non-members should be required to pay fair share fees because the union’s negotiations with the employer might benefit them. “In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interest of the person who does not want to pay.” Janus, 585 U.S. ____, *13-14. The Court went on to clearly state that fair share deductions may not continue.

For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. Under Illinois law, if a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages. §315/6(e). No form of employee consent is required.

This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Johnson v. Zerbst, 304 U. S. 458, 464 (1938); see also Knox, 567 U. S., at 312–313. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Curtis Publishing Co. v. Butts, 388 U. S. 130, 145 (1967) (plurality opinion); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 680–682 (1999). Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.

Janus, 585 U.S. ____, *48. (emphasis added)

Although Janus dealt with “agency fees” under an Illinois statute, the fair share fees authorized under Pennsylvania’s Public Employee Fair Share Fee Law serve the same purpose. The Janus decision makes clear that these fair share fees are unconstitutional. Accordingly, and irrespective of any collective bargaining agreement provisions to the contrary, deduction of fair share fees may not continue. To the extent you have any fair share members in your bargaining units, you should stop deducting fair share dues immediately, and you should communicate this decision to both the individual employee and the union. The Janus decision does not affect collection of regular union dues paid by union members, and such deductions should continue.

It remains unclear what effect, if any, Janus has on maintenance of membership provisions. In the event an employee expresses a desire to resign their union membership, you should consult with legal counsel to determine whether additional action is appropriate.

If you would like more information on the Janus decision or its impact on your workplace, please do not hesitate to call your primary Knox Law contact or any attorney in the Firm’s Labor & Employment Group.

For more information, please contact Sarah Holland.