The Supreme Court may have declared mandatory union fees from public-sector workers unconstitutional, but labor watchdogs and management attorneys expect the battle over paycheck deductions to continue.
On Wednesday the Supreme Court declared policies that coerced public-sector workers to pay dues or fees as a condition of employment an unconstitutional violation of the First Amendment. The case, Janus v. American Federation of State, County, and Municipal Employees, overturned a decades-old practice justices had previously sanctioned under its 1977 Abood decision.
"Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns … employees must choose to support the union before anything is taken from them," Justice Samuel Altio said in the 5-4 ruling. "The State's extraction of agency fees from nonconsenting public-sector employees violates the First Amendment."
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The opinion on forced dues may have been unsparing in the Court's view, but those with experience in federal labor law expect the legal battle to continue. Todd Lyon, a management-side attorney at Fisher Phillips LLP who has represented government agencies during negotiations with AFSCME in the past, said he has already seen public-sector unions attempting to preserve payments they call "fair share fees" from dissenting workers. Four states with heavy union membership rates, New Jersey, New York, California, and Washington, passed laws that would hinder union withdrawal or allow unions to withhold representation of nonmembers despite federal law mandating equal representation for any union with a monopoly over a workplace. Even barring state laws, some local unions are attempting to insert language in their contracts that will limit employees' ability to halt their payments, according to Lyon.
"What I'm seeing is that the unions have done a number of things even at the bargaining table to address their concerns, to minimize the ability of employees to become fair share deductors and minimize their ability to withdraw," Lyon told the Washington Free Beacon. He expects the decision to usher in numerous lawsuits from workers accusing unions and their employers of wrongfully siphoning off dues money from their paychecks, as well as complaints from unions claiming that employers are depriving them of funds.
"Unions are going to file grievances for improperly ceasing deductions, and we're going to see employees sue or file claims against the union for withholding money from their paychecks," Lyon said.
Labor watchdogs are launching campaigns to inform workers of their rights under the Janus decision in the hopes of avoiding future conflicts. On Thursday, the National Right to Work Foundation, which represented the Illinois workers at the center of the case, launched a new website, MyJanusRights.org, to inform public-sector workers of their ability to opt out of union dues and fees. The site provides legal resources about withdrawing support for labor unions, as well as information about filing a complaint if workers continue to see union fees docked from their paychecks.
"All public employees nationwide, including teachers, police officers, firefighters, and state, county and city employees, are protected by the First Amendment from being forced to subsidize any union activity without their clear and affirmative consent," the site says. "If you are already a union ‘fee-payer’ your fees should automatically end."
Other groups are also doing worker outreach to explain the ruling to public-sector employees. Akash Chougule, policy director for Americans for Prosperity, said Janus would enhance the speech rights of employees, but only if they are aware of the Court decision. The AFP Foundation is partnering with the Michigan-based Mackinac Center for Public Policy to spread the word among the rank-and-file government workers. Mackinac has committed $10 million to the campaign.
"The Court's decision will protect free speech and expand worker freedom across the country," he said in a statement. "More than five million public school teachers, firefighters, police officers, and other public employees will not be forced to unwillingly fund political speech."