U.S. Supreme Court Rules That Public Employers Can No Longer Collect Mandatory Fair Share Fees From Non-Union Members

On June 27, 2018, the United States Supreme Court issued its highly anticipated decision in Janus v. AFSCME Council 31. In a 5-4 decision, the Janus Court ruled that laws requiring public employees to pay fair share fees to unions without the employee’s consent are unconstitutional. The Janus decision is available online here.

While the specific Illinois statute at issue in Janus differs slightly from Minnesota’s fair share fee law, the Janus Court’s ruling is unequivocal: States and public-sector unions may not extract fair share fees from public employees who are not members of the union without the employee’s consent. This includes both withholding fees from wages and other attempts to collect payment, unless the employee affirmatively waives their First Amendment rights and consents to pay. While the long-term effects of the Janus decision remain to be seen, as of now, it is unlawful to deduct fair share fees (and other payments to the union by nonmembers) unless the nonmember employee has affirmatively consented to pay. Public employers should immediately discontinue collecting fair share fees to comply with the Janus decision. 

The Janus decision may have additional impacts on public employers, depending on the specific language in the collective bargaining agreement. For example, most collective bargaining agreements dictate what happens when a provision is found to be unconstitutional or unenforceable. Depending on the specific language, a public employer may need to meet with the union regarding the unenforceable fair share language in the collective bargaining agreement. Likewise, in light of the specific language in the Janus decision, public employers should review any written agreements by non-union members to pay fair share fees to ensure that they constitute a knowing and voluntary waiver of the employee’s First Amendment rights. Due to these (and other) potential implications, it is a good idea to have the specific language contained in collective bargaining agreements reviewed by legal counsel in order to determine the full impact of the Janus decision.

Ratwik Roszak Maloney