In a long-awaited, but not surprising decision, the Supreme Court ruled in late June, in a 5-to-4 vote, that public sector employees cannot be forced to pay agency fees to a union.
The impact of this decision cannot be understated. The case, Janus v. American Federation of State, County, and Municipal Employees (AFSCME), No. 16-1466, essentially creates 50 right-to-work states for public sector employees and is a major win for employee rights.
But the ramifications don’t end there. Unions across the country, despite being potentially hit with the loss of substantial fees and dues revenue as a result of the Janus decision, are attempting to use the decision as fuel to help renew a massive recruiting effort.
What did the Supreme Court decide?
The Court Majority—Chief Justice Roberts and Justices Alito, Kennedy, Thomas and Gorsuch—ruled broadly for Mark Janus, requiring that unions representing public sector workers adopt an “opt-in” system to join and pay dues or fees rather than forcing workers to opt-out of doing so.
What is an agency fee?
An agency fee is a payment made by workers in lieu of a union membership fee. These payments, in theory, are paid to a union to cover the union’s cost of representing the workers in question. Two dozen states previous to the Janus decision permitted the payment of these fees, totaling 5 million public-sector workers. Agency fees currently average around 2% of wages and provide millions of dollars annually to unions.
Justice Alito emphasized that the rise of union power in the public sector has led to increased public spending and subsequent funding problems for employee benefits packages, and contributed to multiple municipal bankruptcies.
“As Jefferson famously put it, ‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.’ We have therefore recognized that a “ ‘significant impingement on First Amendment rights’” occurs when public employees are required to provide financial support for a union that “takes many positions during collective bargaining that have powerful political and civic consequences.” –Justice Samuel Alito – Opinion
In Justice Kagan’s dissent, the Justice argued that the Janus opinion will interfere in public debate about workplace governance and that the First Amendment is “meant for better things.
“The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment …” –Justice Elena Kagan – Dissent
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