Fair Share Fees Ruled Unconstitutional

The U.S. Supreme Court issued its ruling in the long-awaited case named Janus v. AFSCME.  In the case, the Supreme Court addressed the issue of whether long-standing precedent, established by the same Court in Abood v. Detroit Bd. of Educ., of permitting unions to negotiate with employers a provision requiring that employees who choose not to join the union must pay fees, equal to those of regular union members, to a non-union organization. 

The reasoning of the Court in Abood was predicated upon the idea that non-union members were benefiting from the services provided by the union, and should thus pay a “fee” for those services – if not to the union, then by the same value to some other organization. 

The Supreme Court, today, reversed that precedent, holding that it violated a person’s Constitutional right to refrain from participating in the speech promoted by a union to require the payment of fair share fees.  The decision means that employers must immediately discontinue deducting “fair share” fees on behalf of employees who do not wish to be part of the union.  Therefore, if any members are paying the “fair share fee” to a third party organization, employers should immediately discontinue such payments.  Employers who, after the decision was issued, deduct such fees may be required to refund such fee deductions. 

Additionally, if employees notify the employer that they wish to have such fee deductions discontinued, employers should, as soon as practicable, discontinue such payments. 

The Supreme Court did not provide guidance on what, if any, limitations or rules for union membership are acceptable, limiting its holding only to holding that requirement of fair share fee payment is Unconstitutional.  It is important for employers to remember that just because a person is not a “member” of the union does not mean that the person is not covered by the collective bargaining agreement or that his or her employment is not subject to the requirements of the collective bargaining agreement.  The collective bargaining agreement negotiated by the exclusive bargaining agent applies to all covered employees, whether or not an employee is a paying member of the union. 

Employers are well-advised, at this time, to refrain from making major changes to collective bargaining agreements without the benefit of some time and care.  Employers in the process of bargaining may wish to carefully examine their contracts to determine what parts should remain (dues will still be deducted, for instance, for regular members) and what parts should be revised or severed.  For employers presently under a collective bargaining agreement, the law already functions to “automatically” sever the illegal provisions from the collective bargaining agreement, leaving the remainder in force.   115 ILCS 5/10(b). 

Miller, Tracy, Braun, Funk & Miller, Ltd. looks forward to working with school employers and Boards of Education as we begin to grapple with the effects and nuances to the changes implicated by the Court’s decision in Janus.