On February 9th, Governor Rauner issued an executive order eliminating mandatory fair share dues for Illinois agency employees, declaring them unconstitutional. Notably, the order does not affect Illinois school districts, municipalities, other local governments and their employees.
The same day the Governor entered the order, he filed suit in federal court against two dozen public unions, seeking a declaratory judgment that deducting mandatory fair share dues from non-union, public employees’ wages is unconstitutional under the First Amendment of the U.S. Constitution. The lawsuit asserts that, as part of the collective bargaining process, public-sector unions take part in many activities that have significant political and civic consequences. Therefore, imposing the fees is a form of compelled speech and association that significantly imposes on employees’ First Amendment right to refrain from supporting public-sector unions and their political activities.
Because the executive order does not apply to the Illinois Educational Labor Relations Act, it does not directly affect school districts. However, if the federal court grants the relief requested by the Governor in his lawsuit, there could be an impact on the imposition of mandatory fair share dues under the IELRA.
The executive order raises significant constitutional questions that ultimately may have an impact on all public employees. In the order, the Governor stated that compelling state employees to pay fair share dues forces them to subsidize and enable union activities that they do not support, violating their rights to freedom of speech and association under the federal and state constitutions. He directed the Illinois Department of Central Management Services and other state agencies to cease enforcement of any fair-share provisions in which the state is a party.
The Governor based his actions on the U.S. Supreme Court’s ruling in Harris v. Quinn, 134 S. Ct. 2618 (2014). In Harris, the Court held that mandatory fair share dues imposed on personal care assistants in Illinois violated the workers’ rights to freedom of speech and association. In support of its ruling, the Court noted that, unlike other public employees, private care assistants were deemed to be state employees for the sole purpose of collective bargaining; however, the customers receiving services were deemed the employer in all other respects.
Interestingly, the Supreme Court did not overturn Abood v. Detroit Bd. of Educ., 97 S.Ct. 1782 (1977), in which the Court found the imposition of mandatory fair share dues on non-union member public employees to be constitutional, although the Court majority in Harris questioned the legal bases for the Abood decision.
As it now stands, Abood, which allows mandatory fair share dues to be imposed on non-union member, public employees, is still controlling law.The Illinois Attorney General has sought leave to intervene in the case in order to oppose the lawsuit.
Contact Stan Eisenhammer or Ellen Rothenberg with your “fair share” inquiries.