In a long-awaited decision, the United States Supreme Court has ruled that “agency fee” laws in 22 states plus Washington, D.C. violate the First Amendment rights of public sector employees. Public sector employees who exercise their right not to join the union representing their bargaining unit can no longer be required to pay “agency fees” to that union to cover the costs of negotiating contracts, processing grievances, and representing unit members in disciplinary proceedings. The ruling in Janus v. AFSCME Council 31 could cripple powerful public sector unions financially and blunt their political influence if a significant number of employees elect to resign their union membership.
The Supreme Court’s 5-4 decision in Janus overrules its 1977 ruling in Abood v. Detroit Board of Education, which held that non-member public sector employees in a bargaining unit could be required to pay the equivalent of union dues to cover the costs of “collective bargaining, contract administration, and grievance adjustment purposes.” While Abood required unions to have a procedure for unit employees to object to paying for certain expenses unrelated to representational activity (such as political activity), in practice the agency fees that non-member public sector employees are often required to pay to unions representing their collective bargaining units have been substantially equivalent to paying the full cost of union membership. As the cost differential between full union membership and paying agency fees is usually insignificant, it stands to reason that many employees who would otherwise refrain from joining their respective unions elected to enroll as full union members in order to be able to participate in union votes. Now that employees cannot be required to pay agency fees, there may be a rush of employees to withdraw from union membership in order to avoid paying dues to a union that these employees never wanted to join in the first place.
The Supreme Court considered the substantially same issue in Friedrichs v. California Teachers’ Association in 2016; however, the death of Justice Scalia and the stalled nomination of Merrick Garland to replace him caused the court to deadlock 4-4. The deadlocked Supreme Court resulted in the continuation of the legality of agency fee laws. The confirmation of Neil Gorsuch as the ninth Supreme Court Justice likely changed the outcome in this case.
The 22 states with agency fee laws struck down by this decision are: Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Montana, New Hampshire, New Mexico, New Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington, along with Washington, D.C.
State-Level Responses to the Janus Decision
In New York, the powerful public sector unions have already pushed through amendments to the Public Employees Fair Employment Act (or Taylor Law), which defines the rights and limitations of unions for public employees, in anticipation of an unfavorable decision in Janus. Salient changes include:
Similar to New York’s amendments to the Taylor Law, New Jersey adopted the Workplace Democracy Enhancement Act. Like the Taylor Law amendments, the act:
Earlier this year Washington modified its law in anticipation of the Janus decision. Specifically, the law:
Proactive Post-Janus Compliance Guidance for Employers
Public sector employers should ensure that they have the appropriate forms and payroll codes to identify non-union members in their system so that they do not collect union dues or agency fees from employees who have elected to refrain from union membership. Employers must also be prepared to process grievances and administer discipline to employees who are not represented by the union.
Employers seeking assistance in establishing procedures to ensure compliance with the Supreme Court’s ruling in Janus and/or New York’s Taylor Law Amendments may contact:
Similarly, employers seeking representation in impact negotiations with employee organizations over the Supreme Court’s ruling in Janus may contact: