June 27, 2018
In a blockbuster decision overruling more than 40 years of legal precedent, the United States Supreme Court just ruled 5-4 that fair share fee clauses for public sector employees are unconstitutional. Janus v. AFSCME Council 31, Case No. 16-1466. In other words, a state’s extraction of agency fees from nonconsenting public sector bargaining unit employees is an unconstitutional abridgment of the First Amendment free speech rights of such employees. Justice Alito, writing for the Court’s 5-4 majority, observed as follows:
We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.
. . . Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. . . . Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.
This decision will have major implications in Illinois and across the nation. In addition to Illinois, at least 20 other states have laws permitting fair share fee clauses to be included in public sector collective bargaining agreements.
