U.S. Supreme Court Declares Agency Fees Unconstitutional, Leaving Unions and Others in the Lurch

June 28, 2018

On Wednesday, a closely-divided Supreme Court struck down compulsory union fees as a violation of the First Amendment rights of public employees. The decision, rendered in Janus v. AFSCME, will have a seismic impact on public sector unions and California’s public employees.

In ruling against agency fees, the five-member majority in Janus overturned the forty-one year precedent of Abood v. Detroit Board of Education, 431 U.S. 209 (1977). In Abood, the Supreme Court held that unions could exact dues from employees who are not union members in order to support the unions’ collective bargaining activities but not to support unions’ direct political campaign expenditures. But, writing for the majority in Janus, Justice Alito declared that requiring dues from nonmembers to support union activity even apart from direct political expenditures is unconstitutional because it forces individuals to finance speech with which they disagree. “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 interests of the person who does not want to pay,” Alito wrote.

The California Legislature began considering measures designed to blunt adverse impacts on unions even before Janus was decided. A bill passed last year permits unions to meet with new public sector hires to discuss the benefits of union membership. And still pending is AB 2970, which would bar the government from publicly sharing information about employee orientations, hampering union opponents from contacting new employees about their constitutional right to decline to pay union dues. AB 2970 has already passed in the Assembly and is now in the Senate. Other pending measures designed to provide unions with an opportunity to impact employee decision making about dues may risk overstepping the constitutional limits established in Janus. For example, AB 1937 would require employees to contact the union instead of their employer when seeking to end their dues payments. Likewise, AB 2049 would give union five days to review dues cancellation requests, providing an opportunity to persuade employees to continue paying dues.

Janus may also create problems with existing labor agreements constructed upon the now-overruled Abood. Public employers should ensure that existing policies are consistent with Janus and check back for new California laws related to union dues at the end of the current legislative session.