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SCOTUS Strikes Down Union Dues Paid by Nonconsenting Government Employees

Posted by Eric Kingsley | Jul 10, 2018 | 0 Comments

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Agency Fees – Background

In Janus v. AFSCME, Counsel 31, Mark Janus, a child-support specialist with the State of Illinois Department of Healthcare and Family Services, challenged the constitutionality of the public-sector agency fee arrangement created by Abood v. Detroit Bd. Of Ed., 431 U.S. 209 (1977). Mr. Janus argued that the “agency fees” or “fair share fees” deducted from his paychecks by the American Federation of State, County and Municipal Employees (AFSCME) constituted compelled political speech in violation of his First Amendment Rights.

Reversal of Abood v. Detroit Board of Education Decision (1977)

The U.S. Supreme Court's (SCOTUS) decision in this case overturned 41 years of precedent set by Abood, where the Court previously held that public-sector unions could collect an agency fee from employees in union-represented bargaining units who opted not to become members of the union. Because all employees in such units are represented by the union and covered by the collective bargaining agreement regardless of union membership, Abood permitted unions to collect a fee to help cover the costs of collective bargaining and other services, as long as the fee did not support the union's political and ideological activities.

Employee unions

In a 5-4 decision, the Court held that “States and public-sector unions may no longer exact agency fees from nonconsenting employees… [as this] procedure violates the First Amendment.” The decision was authored by Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Thomas and Gorsuch. Justice Kagan, joined by Justices Ginsburg, Breyer and Sotomayor, filed a dissenting opinion.

The majority understood that dollars are fungible, and that therefore all fees required by public-sector unions are a matter of speech. The majority rejected the argument that the “free rider” problem discussed in Abood justified burdening the First Amendment rights of employees who object to supporting the union financially. Writing for the majority, Justice Alito stressed the importance of rectifying the unconstitutional burden placed on public-sector employees. “It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue…”

Impact of SCOTUS Decision

The bottom line of the Janus decision is that neither agency fees nor any other payment to a union may be deducted from a nonmember's wages unless the employee affirmatively consents to pay. This decision immediately affects 22 states and D.C., all of which have “fair share” laws on the books authorizing public-sector unions to collect agency fees from non-union employees who fall within the union's collective bargaining unit. It remains to be seen how public sector unions will adapt to smaller member-pools in the short run and the need to encourage new members in the long run.

California employers and employees alike may have questions about this most recent SCOTUS decision. Should you have questions about federal or California's wage and hour laws don't hesitate to contact Kingsley & Kingsley to speak with one of our experienced labor lawyers if you have questions about any of California's existing employment laws.

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About the Author

Eric Kingsley

In practice since 1996, the firm's lawyer and co-founder, Eric B. Kingsley, has litigated complex cases and written numerous appeals in state and federal courts on behalf of the California law firm Kingsley & Kingsley, including More than 150 collective actions. Mr. Kingsley focuses his practice ...


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