Page 3 - 2018 Janus Toolkit LG

OVERVIEW & NEXT STEPS

FIRM OVERVIEW In a 5-4 decision, the United States Supreme Court has held that non-union public em-

Practice Areas ployees may no longer be required to pay mandatory agency fees on the grounds that
such fees violate the First Amendment. In so holding, Janus v. AFSCME reverses 40 years
Construction Advice
& Litigation of legal precedent. Janus may be one of the most significant decisions to affect the labor
Education Law relations landscape in decades and will have an immediate impact on public sector labor
Facilities & Business relations through the country, including California.
Labor &
Employment
Litigation BACKGROUND
Local Government/
Special Districts
Public Finance Petitioner Mark Janus is a State of Illinois employee whose unit is represented by the Amer-
Public Safety
Technology & ican Federation of State, County and Municipal Employees (AFSCME). Janus refused to
Innovation join AFSCME on the basis that he opposed many of the union’s positions in bargaining.
Water Rights &
Regulation Janus sued AFSCME, challenging the constitutionality of the state law permitting the union
to collect fees from non-union members.

Statewide The Supreme Court held that permitting a union to collect agency fees from a non-mem-
ber violates the First Amendment unless the employee clearly and affirmatively consents.
Sacramento
Walnut Creek The Court noted that requiring non-members to pay agency fees was akin to “forcing”
Fresno public employees to “subsidize a union, even if they choose not to join and strongly object
Monterey
Bakersfield to the positions the union takes in collective bargaining and related activities.” The Court
Los Angeles further stated that “[c]ompelling individuals to mouth support for views they find objec-
Mission Viejo tionable violates that cardinal constitutional command, and in most contexts, any such
San Diego
effort would be universally condemned.”

Practice Group Leaders In ruling that non-union members could not be required to pay agency fees, the Supreme
Court overturned Abood v. Detroit Board of Education, which was decided in 1977. Abood
upheld public sector unions’ collection of mandatory agency fees from non-members,
provided that the agency fees did not support unions’ political or ideological activities. In
Janus, the Supreme Court has now made clear that unions can no longer collect agency
fees from non-members for any purpose, unless the employee “clearly and affirmatively
Jenell Van Bindsbergen consents to pay” the agency fees.
jvanbindsbergen@lozanosmith.com
In overruling Abood, the Court rejected the notion in Abood that mandatory agency fees
were required to ensure “labor peace” (i.e., avoidance of conflict and disruption that would
occur if employees were represented by more than one unit). The Janus Court noted that
unions could be effective without mandatory agency fees, and that a union’s designation
William P. Curley III as the “exclusive representative” conferred many benefits, such as the exclusive right to
wcurley@lozanosmith.com

Janus v. AFSCME Overview and Next Steps LozanoSmith.com