Public Sector Fair Share Fees Are Unconstitutional
On June 27, 2018, the U.S. Supreme Court (Court) issued its decision in Mark Janus v. American Federation of State, County and Municipal Employees, Council 31, et al. (Janus), holding that public sector agency fee arrangements, also known as “fair share fees”, unconstitutionally violate the First Amendment free speech rights of nonconsenting public-sector employees by compelling them to subsidize private speech on matters of substantial public concern. Fair share fees are the fees which unions collect from non-members pursuant to a provision in a controlling collective bargaining agreement (CBA). The fair share collection was previously permitted by law under the theory that non-members benefit from the CBA the union has with an employer and should not be permitted to “free ride.”
Prior to Janus, fair share fees had been permitted to cover the cost of union activities that benefit non-members – they could not be expanded for use by unions to express political views, to support political candidates, or to advance other ideological causes not germane to the union’s collective bargaining and related duties. In 1977, fair share fees were declared constitutional by the Court in Abood v. Detroit Board of Education (Abood).
The Court’s decision in Janus overturns Abood, under the reasoning that assessing fair share fees violates the First Amendment and Abood was an anomalous decision that erred in concluding otherwise. Notably, the Court further held that “[n]either an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” In other words, employees must opt in to pay union fees, and the Court held that such agreement “must be freely given and shown by ‘clear and compelling’ evidence.” The Court stated this cannot be met “unless employees clearly and affirmatively consent before any money is taken from them.”
Janus’s implications for public school districts are wide-ranging. As such school boards may want to discuss the potential local implications with their board attorneys. For further information, see Janus v. AFSCME: Implementation Issues for School Boards (June 2018, Published by ICSA) at www.iasb.com/law in the in the section Guidance and Legal Issues.