Supreme Court Rules Fair Share Fees Unconstitutional

Today the U.S. Supreme Court ruled in Janus v. AFSCME Council 31 that a public sector collective bargaining agreement that includes an agency fee clause (also referred to as “fair share” fee) that requires all employees of the unit to pay union dues is a violation of a public employee’s right to freedom of speech and must cease immediately.

This long-awaited decision overturns the 40-year-old framework established by the Court in Abood v. Detroit Board of Education, which permitted the collection of public sector agency fees from all unit employees to the extent the fees covered costs related only to collective bargaining, contract administration and grievances. 431 U.S. 209 (1977).

Effective immediately, fair share fees may no longer be lawfully collected from public sector employees. Agency fee arrangements that have been negotiated in a public sector collective bargaining agreement must cease immediately. Failure to do so may nullify any indemnity clauses in a collective bargaining agreement and may result in civil liability. This Supreme Court decision takes precedence over any contractual bargaining language.

The Janus ruling does not change the collection of dues from current union members. Dues from association members should continue to be collected without interruption. Union members who wish to make changes to their membership should follow the regular procedure of providing the union with their notification to withdraw.

Prior to today’s decision, 22 states plus Washington, D.C. allowed public sector unions to charge fees to nonmembers for collective bargaining activities.

It remains to be seen whether this landmark decision will represent a significant change to the collective-bargaining rights of public sector employees, or simply provide a public employee a choice to which the vast majority will respond by remaining dues-paying members.