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Discussion of the SCOTUS Union Dues Case: Janus

On June 27, 2018, social media and news outlets went crazy when the Supreme Court decided Janus v. State, County, and Municipal Employees.  Many posters and commentators argued that the decision constituted an assault by SCOTUS on unions.  From a strictly legal perspective, however, Janus decided a question related to the First Amendment’s free speech guarantees.  Today’s Long Island employment law blog discusses the legal issues concerning the Janus union decision.

Janus concerned the Illinois Public Relations Act.  The Act allows public service employees in the state to unionize.  Although the Act did not require all employees to join the union, the law nonetheless required that the union be the sole representative for all employees.  The law grants unions broad authority to negotiate employment terms including pay, wages, and hours.  On the other hand, employees cannot use any other agent to negotiate employment terms nor can they negotiate directly with the employer.

Under the Act, employees may refuse to join the union, but are still required to pay dues, albeit at a reduced amount and in accordance with previous Supreme Court directives.  Non-members were required to pay to for union activities including advertising, membership meetings, and litigation.

Mark Janus worked for an agency of the State of Illinois.  His unit is represented by a union, but he refused to join because he opposes the public policy positions the union takes.  He represented in court that he would not pay union fees if he had a choice, but that he was required to pay about $535 per year.  Accordingly, Janus joined a lawsuit, originally filed by the Governor, seeking a Court order that the Public Relations Act is unconstitutional.

Justice Alito wrote the majority opinion for the Court and framed the issue as one concerning the First Amendment.  Justice Alito started his analysis by setting forth some basic First Amendment principles: freedom of speech includes the right to speak and the right not to speak and requiring individuals to support objectionable views violates the First Amendment.  The Court discussed the constitutional concerns raised when the government silences speech and expressed its view that compelling speech raises similar and equally compelling concerns.  The Court further determined that requiring individuals to financially support a union invokes First Amendment free speech concerns.  In other words, because the law “substantially restricts” individual rights, employees have a First Amendment right to refuse to financially support a union.

But, just because an individual’s First Amendment rights may be impinged upon by a State law, it does mean that the law is unconstitutional.  Rather, Courts must then perform a balancing test looking at the importance of the individual right and the manner and reason that the State enacted the law in question.  Although the Court did not state whether a high level of scrutiny was required for the Janus law, it held that the law does not pass Constitutional muster under the less “exacting scrutiny” standard.

The majority opinion then looked back at previous decisions addressing the issue before the Court, most notably the decision in Abood.  The Abood case held that the union fee requirements at issue in Janus, called “agency fees,” were constitutional.  In Abood, the Supreme Court was persuaded that there was a compelling state interest in the fee arrangement because it preserved “labor peace” and prevented the “risk of free riders.”  Justice Alito rejected the former as the evidence did not stand the test of time and the latter due to a lack of a compelling state interest.

The Court then turned to the new arguments raised in Janus for upholding agency fee laws.  The union argued that public employees do not have First Amendment rights, at all.  Justice Alito easily dispatched with this argument, and reiterated the long understood state of the law being that public employees enjoy First Amendment rights.  Those rights, however, are not absolute and it is the exceptions to public employee First Amendment rights on which the dissent and Janus relied.

For the First Amendment to apply to public employees, the employee must be speaking as a citizen on a matter of public concern.  Justice Alito rejected this argument holding that the line of cases which establish such a rule, do not apply to the facts of the Janus case. Justice Alito explained that these cases were different because the “citizen” cases apply to one employee’s speech as opposed to a “blanket requirement” for all employees. Janus involves the government compelling speech, instead of chilling speech, and the categories of speech which the cases look at are different.

In concluding the majority opinion, the Court looked at the factors it should consider in overturning a prior decision.  Justice Alito relied heavily on the factor that a decision should be overturned when the “quality of its reasoning” was wrong.  The Court also relied on its belief that Abood created an unworkable rule.

In sum, the Supreme Court ruled that “agency fee” arrangements are unconstitutional as a violation of the First Amendment.  The Court explicitly held that “States and public-sector unions may no longer extract agency fees from nonconsenting employees.”

As noted by the Court, the decision may create immediate “transition costs,” but, in the Court’s view, the continued practice of collecting fees could not stand in the face of the First Amendment.

If you have questions about the First Amendment, the Janus decision, or public or private sector unions, speak to a Long Island labor lawyer at Famighetti & Weinick PLLC at 631-352-0050.

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Union dues case decided

Union dues case decided

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