United States Supreme Court to Again Review Mandatory Union Fees

Lozano Smith Client News Brief
October 2017
Number 67

On September 28, 2017, the United States Supreme Court agreed to review the Illinois case Janus v. AFSCME, Council 31, which challenges the constitutionality of "fair share" or "agency" fees collected by unions. A decision in the case is anticipated by June 2018.

Janus challenges the constitutionality of fair share fees (a.k.a. agency fees) under Illinois law. Specifically, the Illinois Public Relations Act allows unions to collect fair share fees from non-union member employees on whose behalf the union also negotiates to cover the costs of negotiating and administering the contract. This law is similar to California law, which allows unions to collect a fair share fee from bargaining unit members who choose not to join the union.

In Janus, the plaintiff, a state-employed child support specialist, challenged the mandatory payment of fair share fees, claiming such arrangements are unconstitutional under the First Amendment.Janus claims that the fees support a mandatory advocacy group whose speech is designed to influence governmental policies in excess of employees' actual support for the advocacy group and its agenda. The plaintiff seeks to overturn a 40-year old ruling inAbood v. Detroit in which the Court ruled that it was constitutional to require all employees to pay to support the cost of bargaining, so long as the fees paid by the workers are not used to cover the cost of political or ideological activities.

If the Supreme Court overturns the Abood ruling and finds that fair share fees or agency fees violate constitutional rights to free speech and association, employees would no longer be required to pay anything if they decline membership in the union. Proponents of the Abood ruling argue that without such fees, non-members reap the benefits of the union by using their services without bearing the cost.

The Janus case is not the first time that the Abood ruling has been challenged.Friedrichs v. California Teachers Association, a case involving California teachers, was on the brink of overturning the Abood ruling. The death of Justice Antonin Scalia in February 2015 left the Supreme Court without a ninth vote, and the Court split 4-4 when it decided the Friedrichs case. The appointment of Neil Gorsuch to the Supreme Court may provide the fifth vote needed to overturn theAbood case and to find mandatory fair share fees to be unconstitutional.

In addition to the Janus case under review by the Supreme Court, a case currently pending in a federal district court in California challenges fair share fees. That case,Yohn et al. v. California Teachers Association et al. (C.D. Cal., Case No. 8:17-cv-00202-JLS-DFM), in which Lozano Smith represents several involved school districts, claims that these fees violate the First Amendment's individual speech rights. There was an unsuccessful attempt to fast-track Yohn to the Supreme Court to be considered with theJanus case. Thus, while the Yohn case is still pending, it is possible that the ruling in Janus will be dispositive of the major issues.

The Supreme Court's agreement to review the Janus case does not impose any new obligations on public employers with respect to mandatory fair share fees. Rather, existing collective bargaining agreement provisions on fair share fees will remain in effect until a decision is issued by the Court.

Lozano Smith will be watching this case closely and will provide updates as they become available. For more information on the Janus case or on union dues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.
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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.