Fair Share Fees Unconstitutional

By July 17, 2018 News No Comments

On June 27, 2018, on its last day of its 2017-2018 term, the United States Supreme Court held in the case of Janus v. AFSCME that Fair Share fee provisions in public sector collective bargaining agreements violate the First Amendment to the U.S. Constitution.  The Supreme Court’s ruling means that collective bargaining agreements cannot force non-members to pay a portion of their wages to a union.  All dues payments must be voluntary.

The case itself arose in Illinois, and the Supreme Court considered whether the Fair Share provisions negotiated under the Illinois Public Labor Relations Act violated the non-Union member’s rights to free association or, as the facts were here, non-association.  A nearly identical Fair Share provision exists in the Illinois Educational Labor Relations Act.

As a result, effective June 27, 2018, it is unlawful for Unions to collect fees from non-members in the public sector, and it is unlawful for public employers, including school districts, to deduct dues or fees from public employee paychecks without the employee’s consent.

In a sharply written opinion, a majority of the Supreme Court reasoned that Fair Share Fees raise First Amendment Concerns:

Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” We have therefore recognized that a “‘significant impingement on First Amendment rights’” occurs when public employees are required to provide financial support for a union that “takes many positions during collective bargaining that have powerful political and civic consequences.”

Janus v. AFSCME, 585 U. S. ____ (2018) (emphasis in original; internal citations omitted).

Many unions and public employers predicted that the Court would conclude Fair Share fees violate the Constitution and so were prepared to suspend the Fair Share collections on the same day as the decision.  In the coming months and years, public employers can expect to see increased efforts by unions to attract members, and these efforts will likely have significant impact on public employer’s operations and bargaining relationships.

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