Janus Decision Alert
What Employers Need to Know Now: Neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay
Public Union “Agency Fees” Violate Employees’ First Amendment Rights
On the last day of its 2017‑18 term, the Supreme Court handed down a landmark decision protecting the First Amendment rights of public employees.
In Janus v. AFSCME, the Supreme Court overturned an older decision that upheld a union’s right to force non-members to pay an “agency fee”—an amount slightly less than the cost of “full” union membership.
The case was brought by Mark Janus, an Illinois Department of Healthcare and Human Services employee, who argued the “agency fee” he was forced to pay to the American Federation of State, County, and Municipal Employees Union (AFSCME) constituted “forced speech.”
While AFSCME argued these “agency fees” would only be collected as reimbursement for collective bargaining expenses, the Supreme Court rejected this defense. Specifically, the Court recognized what millions of public-sector employees already understand: public union spending is so entwined with politics it’s impossible to determine what—if any activities—are truly non-political.
As such, the Court ruled that by requiring employees like Mr. Janus to pay an “agency fee,” the State was “forcing free and independent individuals to endorse ideas they find objectionable. Such coercion, ruled the Court, violates the First Amendment.
Bottom Line for Public-Sector Employers: In the coming months, public-sector employers should expect a number of inquiries from employees who no longer wish to pay union fees. Employers should contact counsel to discuss how to navigate potential post-Janus legal landmines.