The U.S. Supreme Court recently issued its decision in Janus v. AFSCME Council 31. This case determined that forced payment of dues or fees by public employees to their collective bargaining representative is a violation of the public employees’ First Amendment right to free speech. The impact of this decision is that NO public employer can legally negotiate a mandatory dues or fees payment to be taken involuntarily from public employees to be paid to the bargaining agent as a condition of employment. Only voluntary acts by employees are permitted if carefully drafted. There are more principles in this 5 to 4 court decision, but this is the primary take away. Any public entity that has a mandatory membership or fee provision in a contract needs to remove such provisions from the collective bargaining agreements and policies immediately.
This case arose when a public employee in an AFSCME state bargaining unit did not want to pay an “agency fee” to the union for collective bargaining representation. Illinois public employee labor law authorized the fee to be charged as a part of a union contract. Until this case was decided, Abood v. Detroit Bd. Of Educ, 431 U. S. 209 (1977) was the controlling precedent. The Abood case allowed for agency fees to be charged without approval by a public employee when a public employee did not want to be a member of the union. It was an authorized service fee.
The focus of the Janus was on the mandated payment of moneys to the union that interfered with the public employee’s free speech. The Court referenced the principle that forced associations that burden protected speech are impermissible. The Court stated “compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns.”
In response to the union’s position that the agency fee arrangement prevents “free riders,” the Court stated that “avoiding free riders is not a compelling interest” that can override an individual’s First Amendment rights.
All public employers need to review their collective bargaining agreements for the purpose of removing any mandated payments from being extracted from a public employee’s paycheck without the employee’s specific consent. The better means of consent is to have a public employee periodically sign payroll withholding forms if any payment it to be withheld. Without such consent, the public employer is at risk of violating a constitutional right and should not withhold such payments for the exclusive bargaining agent.
The analysis provided by Ivan Schraeder in this law alert has already been shared amongst all of Missouri’s municipalities. Please contact Ivan via email if you have any questions.