It appears that a number of labor unions are planning for the potential negative impact of a big decision regarding fair share fees. We have heard from several public sector clients who have been contacted directly, or who have had employees contacted, by labor unions about the potential impact of Janus v. AFSCME Council 31, which is currently pending before the United States Supreme Court. The case, which could ultimately declare fair share fees unlawful, is expected to be released before the end of June of 2018.
Based on what we have read from these unions, they seem to believe that there is a good chance that the Supreme Court will declare fair share fees unconstitutional.
As a reminder, fair share fees are fees that are required to be paid by bargaining unit employees who elect not to be full-fledged union members. By operation of state law, employees who are in the bargaining unit but who elect not to be union members are forced to pay “fair share” fees in many states, including Pennsylvania. These fees are often a large percentage of the actual cost of union membership.
Public sector employees have raised multiple challenges to the constitutionality of fair share fees. Specifically, a number of public sector employees have alleged that such fees violate employee First Amendment Rights. We wrote about one such challenge here. That decision, Harris v. Quinn, was highly critical of fair share fees, and the underlying justification for requiring fair share fees. Harris closely examined the precedent that initially determined that such fees were lawful, which concluded the goals of limiting or eliminating “free riding” and the promotion of labor peace overrode any impact on employee First Amendment rights.
While it was highly critical of these stated goals, the Harris Court came just short of declaring all fair share fees unconstitutional. A subsequent challenge to fair share fees that also reached the Supreme Court case also fell short of declaring the fees unlawful.
Enter Janus. Janus is a public employee and member of a bargaining unit, but not a member of the union. He has been forced to pay fair share fees for some time. Janus has argued that the union engages in certain activities that he does not support, and that the union uses his fair share fees to engage in such conduct. Essentially, he does not support any of the union’s activities, and he believes it is unfair that he is forced to pay them to engage in such activities. Janus wants to be able to opt out of paying any fees to the union. Janus argues that forced fair share payments to a union he does not support is “compelled speech” in violation of his First Amendment rights.
Janus is currently pending before SCOTUS, and many believe that the Court finally has the votes to declare fair share fees unconstitutional. Based on what we have seen, it appears that at least some labor unions agree.
Some observers believe that the elimination of fair share fees will significantly weaken the political clout of public sector labor unions. We should soon know the fate of fair share fees generally, as the Janus decision is expected in the near future. However, if fair share fees are declared unconstitutional, only time will tell what impact, if any, the elimination of fair share fees would have on public sector labor unions.
Stay tuned, we will keep you posted.