Supreme Court Rules Fair Share/Agency Fees Unconstitutional | KingSpry

Supreme Court Rules “Fair Share/Agency Fees” Unconstitutional

Photo of attorney Brian J. Taylor

Posted on June 27th, 2018
by Brian J. Taylor

In a complete reversal of current law and in a decision certain to have national and direct political ramifications, the Supreme Court ruled today that the collection of agency fees by public employee unions violates the constitutional rights of the non-union members of the employer. 

In Janus v. AFSCME Local 2600, the Court specifically held that the State of Illinois’  extraction of “fair share” or “agency fee” fees from non-consenting public sector employees violates the First Amendment.  Though Pennsylvania’s Public Employment Fair Share Fee Law is not identical to the Illinois law, it has the same effect in operation. 

In reversing the lower court, the Supreme Court overturned the seminal case of Abood v. Detroit Board of Education which held that such collections were not violative of the employee’s First Amendment Rights since the unions have a legal obligation to represent all workers, whether or not they chose to be members.

It was this distinction between collective bargaining activities that theoretically inure to the benefit of all the employees of that particular union and those activities that are solely focused on the advancement of certain political positions that the Supreme Court has effectively erased with its holding in Janus.

In a split along political ideological lines, the Court’s decision written by Justice Alito reasoned that most collective bargaining agreement issues are inherently political.  The Petitioner, Janus, who was a state employee had refused to join the Union on the grounds that he opposed many of its positions, including those taken in collective bargaining.

The Supreme Court explained that the government’s proffered interest of promoting “labor peace” and avoiding “free riders” failed to justify or carry the heavy burden that the collection of agency fees placed on the First Amendment interests of non-members.

The Janus decision also has a larger historical context, in that the same issue was presented in a similar case in 2016.

In that case,  Fredericks v. California Teachers Association,  the Court deadlocked 4-4 following the death of Associate Justice Antonin Scalia as his vacant seat lingered until the election of a new president. The Janus decision has potential long term political effects as these types of fee collections were critical to the financial health of the already shrinking power of unions which tend to vote along Democratic lines.

The reversal of forty years of case law that had adhered to the Abood decision now means union fee deductions from public employees may not be made unless the employee affirmatively consents to the payment. Even here, the Court set a heightened standard of proof regarding the waiver of the First Amendment rights by the nonmember employees holding that the waiver may not be presumed but rather must be supported by clear and compelling evidence.

The immediate import of the Janus opinion is that the collection of fair share fees from all nonmember public employees must stop immediately. The opinion appears to have no effect on regular dues paying members or private employers. Nonetheless, Janus represents a seismic shift in the areas of employment law and a blow to the viability of public employee unions.

With the landscape changing so suddenly there are several best practices that can be taken. First, establish a system that requires proper prior authorization prior to any future union fee deductions. Second, if your district has been deducting make certain that the process for collecting union fees is updated so that you do not continue to take fees from employees objecting to the deductions. Third, and perhaps most importantly, engage actively with your local bargaining agent as a partner in implementing new processes. Also continue to bear in mind that unions will still be required to represent and provide benefits to those employees who have elected not to join them.

Bottom Line for Schools

Until school employers can gain a full understanding of Janus’ implications, the safest course in order to avoid labor entanglements may be to follow the advice of PSEA itself which can be summarized from a letter to School Employers by PSEA’s Executive Director James Vaughn:

1. Immediately cease payroll deductions of Fair Share fees from fees paid in to bargaining units.

2. Advise the PSEA or other bargaining representatives whether you were able to stop deductions before your next payroll.

3. If you have collected fees prior to the date of the Janus decision, transfer those fees to your local bargaining unit using your current procedures.

Before taking any course of action, contact your solicitor or labor counsel to seek legal advice.



This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.