On June 27, 2018, the Supreme Court of the United States issued an opinion declaring that public employees who are not members of a union cannot be required to pay agency fees as a condition of employment in the case of Janus v. AFSCME Council 31, Docket No. 16-1466. This is a reverse of an earlier Supreme Court of the United States decision which had permitted such fees.
The plaintiff, Mr. Mark Janus, is employed in the Illinois Department of Healthcare and Family Services but is not a member of the union – AFSCME Council 31. The contract between the Union and Illinois required Mr. Janus to pay a fee (called a fair-share fee) to the Union to cover the costs of collective bargaining, contract administration, and grievance proceedings. Like, New Jersey, Mr. Janus’ fee could not be used for political expenditures.
Mr. Janus argued that there was no way to ensure his fair-share fee (also known as an agency fee) was not being used for political purposes that he disagreed with since the Union was politically active. He claimed the fee, therefore, was coerced political speech and incongruous with his First Amendment rights.
The United States Supreme Court agreed with Mr. Janus, finding the State of Illinois could not coerce Mr. Janus to pay an organization which was politically active, thus subsidizing the political speech of others. Accordingly, it found Mr. Janus could not be required, as a condition of employment, to pay fair-share fees to the Union which he was not a member.
Public employers must take careful note of this decision – especially in light of the recently passed the New Jersey Workplace Democracy Enhancement Act. Public employers should consider the following steps:
- Understand that as a public employer, you are now prohibited from deducing agency or fair-share fees from your employees’ wages.
- Review your union contracts and any memorandums of understanding/agreement regarding payment of dues and agency fees. Importantly, examine those agreements for any requirement to “meet and confer” or other requirements to negotiate with any unions regarding alternatives to the prohibition on public employers deducting mandatory agency fees.
- Identify any employees who are currently paying agency fees. Those employees paying mandatory agency are the employees covered by this decision – which is effective immediately. Accordingly, public employers may no longer make those deductions from wages.
- There should be a careful analysis to determine if this is a voluntary deduction or a mandated agency fee. Voluntary deductions are not covered by this decision and no changes should be made to those employees.
- Be cautious of the mandates of the Workplace Democracy Enhancement Act, including its prohibition on public employers from encouraging Union members to resign their membership or to revoke the authorization of deduction of fees.
For more information about the Workplace Democracy Enhancement Act, click here.
If you have questions or concerns about the elimination of agency fees for public unions, please do not hesitate to contact one of our Employment and Labor Law attorneys: Thomas Ryan, Esq. (firstname.lastname@example.org), Ursula Leo, Esq. (email@example.com), or Jessica Jansyn, Esq. (firstname.lastname@example.org). Our attorneys can also be reached by phone at (973) 729-1880.