This week marks a significant shift in public sector labor relations. The Supreme Court, in the 5-4 Janus v. AFSCME decision, overruled over 40 years of precedent. The Court held that forcing non-consenting public sector employees to subsidize a union by paying an agency fee constitutes a violation of the First Amendment. Prior to Janus, the law permitted unions to charge nonmembers an “agency fee,” or a percentage of the full union dues, in order to cover union expenditures attributable to collective bargaining activities since the individual employee, despite not being a member, still enjoyed the benefits resulting from collective bargaining due to the union being the exclusive representative of all the employees. But many public sector employees were uneasy with this arrangement, given the difficulty of separating union activities that are political from those that are apolitical in nature.
The Court found that “[f]orcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns,” which includes compelling public sector employees to subsidize the speech of private speakers, such as labor unions. The majority decision, authored by Justice Alito, went to great lengths to confirm that where fundamental free speech rights are at stake, compelling a public sector employee to endorse speech with which he or she disagrees can only be as a result of serving a compelling state interest, which the Court did not find to exist in this case.
So what does Janus mean for public sector employers? The Court expressly directs that no agency fee or other payment to the union may be deducted from a nonmember’s paycheck unless the employee affirmatively consents to pay. In other words, public sector employers should immediately stop collecting fair share payments because Janus requires that each employee paying fair share affirmatively instruct the employer to deduct the payment. Absent this affirmative “yes” to deduct, any deduction would violate the First Amendment.
Employers may also want to consider revising their collective bargaining agreements to reflect the changes necessitated by Janus, or consider entering into a Memorandum of Understanding to correct the now unlawful language contained within their collective bargaining agreements. While immediately ceasing fair share payments will bring an employer into compliance with the Janus decision, even in the absence of contractual changes, revising such language now will lessen the likelihood of administrative errors and even lawsuits.
Finally, employers should consider whether and how to communicate the implications of Janus with their employees. The decision to communicate, and how to do it in the most effective manner, could differ from one situation to another.
While Janus puts an end to the collection of agency fees from non-consenting public sector employees, the decision is just the beginning of a new labor relations fight. Public sector employees across the country can expect to see new union tactics that will make leaving the union difficult. For example, unions in several right to work states have attempted to keep members locked in by only allowing individuals to withdraw from membership in a certain month, or only during a ten–day window period. One union in Michigan implemented this type of approach and while the Michigan Supreme Court ultimately ruled that employees could leave the union at any time, it took over five years of fighting before the matter was resolved. Thus, while Janus overturns over 40 years of labor law, the matter is far from settled and responsible public sector employers should continue to pay close attention to this issue.