Recently, the U.S. Supreme Court ruled that government workers who choose not to join a union cannot be charged for the cost of collective bargaining and related activities.
In a 5-to-4 decision, a majority of the Court noted in Janus v. AFSCME, Council 31, that “agency fees” violate, “the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”
As we have reported before, this case stemmed from an Illinois public sector employee who challenged a requirement that government workers who opt out of a union still have to pay partial dues (known as an “agency fee”) to cover the union’s cost of negotiation and other functions associated with policing and enforcing the contract. This decision overrules the Court’s own 41-year-old precedent, which said workers did not have to pay for unions’ political activities but could be required to contribute to other costs of representation, such as negotiating wages and benefits and processing grievances. The Court’s decision frees those non-members from having to pay the fees.
Significantly, and what will have an immediate impact on employees and employers is that the Majority held that an employee must affirmatively consent to pay the agency fee: “Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.” The Court did not specify the form this “affirmative consent” must take, but most likely will be in the form of a signature card explicitly authorizing the withdrawal of agency fees in accordance with Janus.
Employees who elect to be union members and pay the full union dues, as opposed to paying just an agency fee, are not affected directly by this decision. However, the decision could serve to inform all members that paying dues or an agency fee is now optional.
So what are the practical implications for public sector employers? First, you must immediately cease from withholding agency fees from non-union members. Secondly, you can expect your unions to want to meet with all bargaining union members, including those who pay full dues and those who pay just the agency fee, to convince them to remain union members, and to try to get non-members to sign a card affirmatively consenting to withholding agency fees. In addition, you may find that unions will want to either modify or “open” the union dues section of the collective bargaining agreement to strengthen their position, and/or solicit support in signing up agency fee payers.
As we have learned, many public sector unions have already printed up (and in some cases handed out) new authorization cards which may or may not be sufficient under this new enhanced consent requirement. Therefore, it is advisable that before deducting agency fees, to seek proper counsel from experienced labor and employment law attorneys.