Supreme Court Update: Janus v. AFSCME

Supreme CourtThe U.S. Supreme Court ruled today that public sector employees cannot be forced to pay “fair share” fees if they refuse to join a union. This decision impacts all Delaware public sector employers, employees, and unions.

Public sector employees in Delaware can refuse to join a union even when that union has organized the workplace and has achieved the right to act as the exclusive bargaining representative of its employees. Under Delaware law, the union must still represent those who have refused to join, as well as dues-paying union members.

While full union members pay dues to the union, fair share fees—sometimes called “agency” or “service” fees—are assessed on those employees who refuse to join. These fees represent the portion of full union dues devoted to collective bargaining and contract administration.  As a result, non-members are not required to financially support a union’s political and other advocacy activities.

Current Delaware law fully embraces a union’s right to collect fair share fees. Indeed, the Delaware Public Employment Relations Board has ruled that a fair share fee may be collected, even if an employee refuses to execute an authorization to deduct the fee. Employees who fail to pay fair share fees can be terminated.

In Janus v. AFSCME, Council 31, the Supreme Court ruled that fair share fees cannot be imposed on non-members without their consent.  It held that such fees violate the non-members’ First Amendment right of freedom of association. In reaching its decision, it overturned the Court’s 1977 decision in Abood vs. Detroit Board of Education which expressly permitted the collection of such fees.  The Court’s decision in Janus was widely expected after the Court deadlocked 4 to 4 in a 2016 case on the exact same issue, after Justice Antonin Scalia’s sudden death.  His replacement, Justice Neil Gorsuch, supplied the crucial fifth vote in Janus.

Under the Janus ruling, a public sector employee who refuses to join a union cannot be forced to pay a fair share fee and cannot be terminated for failure to do so.

Most collective bargaining agreements contain provisions detailing how union dues, fees, and assessments are to be deducted from the paychecks of employees. These provisions, usually labeled “union security” or “check off” provisions, are the most important to a union in a contract since they guarantee a stream of cash to fund its operations.  These provisions also require a written authorization from each employee permitting the deductions.

After Janus, employers should only deduct dues or a fair share fee when they have received a written authorization from an employee to do so.  Employers should also plan for some employees to revoke authorizations they have previously provided. In such case, the employer should require that the revocation be in writing and should immediately cease withdrawing dues or fees upon receipt, and after providing notice to the affected union.

The Janus opinion is a landmark decision that will require immediate action by all public sector employers to ensure legal compliance and to avoid liability for improper withholding of fair share fees.

Members of Young Conaway’s Labor and Employment Law Section are available to discuss this important opinion.