Thursday, October 5, 2017

U.S. Supreme Court Agrees To Hear Challenge To Union Fees

Although expected given that Justice Gorsuch was confirmed creating a 5-4 conservative majority, today the U.S. Supreme Court granted certiorari in Janus v. AFSCME, a labor case that will ultimately have a far reaching impact on the future of labor unions. In granting certiorari, the U.S. Supreme Court agreed to hear a challenge to the so-called "fair share" fees public employee unions collect from non-members, posing a major threat to organized labor.  

Over the past several years, Right-to-Work proponents have been dealt several setbacks. Three years ago in Harris v. Quinn, another Illinois case concerning fair share fees for home health aides, the U.S. Supreme Court punted on the issue by concluding the home health aides were not employees. Most notably, two years the U.S. Supreme Court deadlocked two years ago in Friedrichs v. California Teachers Association, a case concerning the issue of whether public employees who do not join a union can be required to pay an “agency” or “fair share” fee to cover costs that the union incurs, by issuing a non-precedential 4-4 per curiam opinion affirming the lower-court decision. Similar to Harris and Friedrichs, Janus concerns an Illinois state employee who claims that his First Amendment rights are being violated because, as a condition of his employment, he is required to pay an agency fee to AFSCME to act as his bargaining representative.  In other words, Janus has asserted that in the same way salaries, pensions and benefits for government employees are inherently political, agency fees – even if characterized as the costs of contract negotiations – are supporting speech designed to influence governmental policies.

Unlike Friedrichs, today’s granting of certiorari signals that the U.S. Supreme Court’s five-member conservative majority is poised to rule that workers opposed to union representation cannot be forced to pay for collective bargaining and other benefits. To that end, the consequences in this case are enormous, not only for the parties but also for any other union that represents public employees who must pay agency fees. If employees are not required to pay the fees, many of them probably won’t, which would have a direct effect on the financial health of public sector unions. And although the fees now at issue before the U.S. Supreme Court cannot be used for politics, that could in turn lead to a reduced role on the political stage for unions. 

We will continue to update you on this case. Should you have any questions about Janus v. AFSCME please contact us.