This post was authored by Joshua A. Goodman.
In October 2017, we reported that the U.S. Supreme Court agreed to review Janus v. AFSCME, a case out of Illinois challenging the constitutionality of mandatory agency shop fees for public employees. Illinois, like California, is one of several states where agency shop arrangements are authorized in the public sector.
An agency shop requires that, as a condition of employment, an employee within the defined bargaining group either join the recognized employee organization, or pay a service fee to the organization (typically an equivalent amount) for collective bargaining and other activities conducted on the employee’s behalf. However, the Supreme Court has held that unlike union dues, agency shop fees may not be used to express political views, support a political candidate, or otherwise advance an ideological cause unrelated to collective bargaining, as doing so violates First Amendment free speech principles.
The plaintiffs in Janus assert that an agency shop arrangement likewise infringes on their free speech rights because collective bargaining with a government agency is essentially tantamount to political speech intended to influence policymaking. The Supreme Court addressed, and rejected, the same argument 40 years ago in Abood v. Detroit Bd. of Ed. Thus, the plaintiffs in Janus have requested that Abood be overruled.
This is not the first time the Supreme Court has considered overruling Abood. The same issue recently arose in the 2016 case of Friedrichs v. California Teachers Assoc. However, that case resulted in a 4-4 split among the justices at a time when the ninth seat on the Court was vacant following the death of Justice Antonin Scalia. As a result, Abood remained the law.
Oral arguments at the Supreme Court in Janus were heard by the justices on February 26, 2018. The justices and lawyers addressed issues including, but not limited to, the “free-rider” issue of non-dues/fee payers benefitting from union representation, the efficacy of unions and the number of collective bargaining contracts that may be invalidated if Abood is overturned, the scale and scope of matters within the realm of public concern, and the impact of the decision on labor peace.
While Friedrichs had a split vote, that will not happen in Janus because Justice Neil Gorsuch was appointed to fill the vacant position. Analysts predict that Abood will now be overruled, effectively putting a stop to agency shop arrangements in every state.
A decision is expected by June 2018. As an initial step, agencies with agency shop agreements should review their collective bargaining agreements to determine if there is a severability clause and the parameters of these clauses. A severability clause essentially provides that if any provision of the contract is deemed to be illegal, the rest of the terms of the agreement survive. Agencies may receive requests from union representatives trying to anticipate and/or determine next steps. Specific strategies on how to respond will need to be developed with your agency’s chief negotiators and legal counsel, and of course will ultimately depend on the final decision in Janus.
We will continue to monitor the case and provide updates as they become available.