Supreme Court Invalidates Public-Sector Union Agency Fees: Considerations for Congress in the Wake of Janus [July 20, 2018]   [open pdf - 594KB]

"On June 27, 2018, the Supreme Court held that 'agency fee' arrangements between a union and a government employer necessarily violate the First Amendment, overruling its 1977 decision in Abood v. Detroit Board of Education. Agency fee arrangements (sometimes called 'fair share' provisions) require employees to pay a fee to the union designated to represent their bargaining unit (i.e., an exclusive union representative) even if the employees are not members of that union. The Abood Court had held that these arrangements are constitutional insofar as the union uses the fees for 'collective bargaining activities' and not 'ideological activities unrelated to collective bargaining'--described in later cases as 'chargeable' versus 'nonchargeable' expenditures. But this term, in Janus v. American Federation of State, County, and Municipal Employees, Council 31 (AFSCME), a five-member majority of the Court reversed course, holding that Abood was 'wrongly decided' and that public-sector agency fee arrangements 'violate[] the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.' The case has potential implications not only for public-sector employers and workers, including those in more than twenty states that authorize public-sector agency fees, but also for other forms of compulsory fee arrangements required or authorized by Congress, the states, or other governmental entities."

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