SCOTUS Concludes Agency Fees Violate Workers’ First Amendment Rights

With its recent decision in Janus v. AFSCME, Council 31, a majority of Supreme Court Justices ruled that “agency fee” laws in 22 states plus Washington, D.C. violate the First Amendment rights of public sector employees. Public sector unions may no longer require employees who choose not to join the union to pay “agency fees” to cover costs of negotiating contracts, processing grievances, and more. The sweeping ruling is likely to undermine unions for teachers, firefighters, police officers, and other public employees throughout Connecticut for years to come.

In its ruling, the majority overturned a prior decision (“Abood”) that said non-member public employees may be required to pay the equivalent of union dues to cover costs of “collective bargaining, contract administration, and grievance adjustment purposes.” In Janus, the Court concluded that its prior ruling is inconsistent with standard First Amendment principles because forcing “free and independent individuals to endorse ideas they find objectionable raises serious concerns.” While the prior decision stated political expenditures utilizing non-member fees are not allowed, the Janus Court reasoned that everything a public union does is inherently political and as a result, forcing non-members to pay agency fees would be akin to forcing independent citizens to endorse ideas they do not agree with or believe in.

The Court found that the principle of stare decisis does not require retention of the prior decision because it was poorly reasoned. The Court rejected arguments to the contrary and opined that Abood has a “lack of workability” that weighs against it because the line between chargeable and nonchargeable expenditures that it established is too blurred and the union’s required reports are too difficult to verify for non-members. This paired with developments that have “eroded the decision’s underpinnings,” like the existence of exclusive representation from public unions at the federal level despite no agency-fee scheme, allowed the Court to dismiss Abood as not carrying decisive weight.

In conclusion, the majority dealt a major blow to public unions through its dismantling of the agency-fee structure and overturning of Abood. The majority was very careful to express that they do not feel they are gutting public unions, rather choosing to view agency fees as an unnecessary luxury, rather than a necessity for the operation of these unions. The majority emphasized that unions are free to choose not to represent non-members in the collective bargaining process. They, however, noted that the union will likely not do this as there are inherent benefits to the union in representing all workers, union members and nonmembers, and inherent restrictions on non-members that are represented. The Court further concluded that unions can still operate efficiently and can still represent the needs of union members and nonmembers, including the lack of agency fees for federal workers and those states that have not implemented agency-fee schemes.

Impact on Employees and Unions

For employees who are members of public unions, this decision means they are contributing to the union’s costs of operation, while nonmembers are paying nothing, but are likely still being represented. Critics of this decision have argued that this will likely make it more difficult to effectively represent all workers. As FiveThirtyEight’s Amelia Thomson-DeVeaux notes, there’s no straightforward way of assessing the direct impact of free-riders on unions, although there is evidence that unionization is lower in the 28 states that currently have right to work laws, where non-union workers are not required to pay for union representation.

For public employees that are not members of their unions, this decision will initially mean a few different things. First, they will need to opt-in rather than opt-out for union representation in collective bargaining and grievance proceedings. While the majority believes this will not deter union membership, it is quite possible that some public workers will avoid the union entirely at this point and indeed, it seems they now have that choice available to them. Second, agency fees can no longer be assessed for nonmembers, so there will be no dues collected from these employees. Third, as noted above, the union may not be able to represent nonmembers quite as well as when they were collecting agency fees for operation costs.

Naturally, the operations of public unions will also be affected by this decision. Public unions will now have to do the same work they had been doing prior to the decision, but with less funding. Additionally, as noted above, unionization is consistently lower in the states that do not require agency fees and that currently have right to work laws. In the end, unions are likely going to suffer in terms of membership and funds, making representing their members and those non-members that opt-in even more difficult.

Considerations Moving Forward

Moving forward, we should expect challenges from unions trying to make this situation more palatable. Additionally, unions have started to move to better organize nonmembers, attempting to convince them to become full union members. Prior to the ruling, union organizers also noted that a ruling against agency fees could require public employers to allow multiple unions to compete for workers, instead of just having to deal with one. This could lead to harder-line stances from unions and potentially even increased power as unions attempt to out-do one another to show they’re the most committed advocates. This is, of course, a possibility, though one that the Supreme Court majority ultimately dismissed as unlikely within their opinion. Ultimately, we will have to keep a close eye on the situation to see how it unfolds in the coming months.