In a highly anticipated decision, the United States Supreme Court today held that it is a violation of the First Amendment to require public sector employees who are not members of a union to pay any union dues, even when a portion of those dues is attributable to the costs of collective bargaining on behalf of all employees.  Janus v. AFSCME Council 31, 585 U.S. ___, 2018 WL 3129785 (2018).

Petitioner Mark Janus, an employee of the state of Illinois, refused to join the union because he opposes many of its positions, including those arguably taken on his behalf in collective bargaining activities.  Janus challenged the requirement that he pay any fees to the union, including that portion of the union dues attributable to collective bargaining activities (“agency fees”), arguing that such fees represent “coerced political speech” and that “the First Amendment forbids coercing any money from the nonmembers.”  In a 5-4 decision, the Court overruled its prior opinion on this issue and determined that the state’s “extraction of agency fees from nonconsenting public-sector employees violates the First Amendment.”

 

Takeaways

Importantly, this ruling applies only to public sector unions, and therefore unions operating in the private sector may still collect agency fees from non-members.  The impact of this decision on the public sector is sure to be significant.  As the majority points out, unions may experience “unpleasant transition costs,” and as Justice Kagan predicts in dissent, this also means that state and local governments that previously operated with agency fees will have to find new ways of managing their workforces.  Negotiations between parties that have a continuing relationship may become particularly contentious, as the parties can no longer rely on long-settled terms, such as agency-fee provisions, when bargaining over future agreements.

This development also may have a significant impact on political contributions across the country.  In 2016, public employee unions contributed $65 million to political candidates, 90% of which went to Democrats.

The California state legislature already has taken several affirmative steps to cushion the blow of the Janus decision for its allies in the labor movement.  Last year, the California Legislature enacted and Gov. Brown signed Assembly Bill 119, which requires public employers to provide union representatives exclusive access to new employee orientation meetings so that the union can try to convince employees that it is in their interest to join the union and pay union dues.  The new statute does not indicate whether employee attendance at such sessions is mandatory nor does it acknowledge the existence of Cal. Gov’t Code § 3502, which specifically guarantees that “Public employees also shall have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves individually in their employment relations with the public agency.”

AB 119 also requires public employers to provide the union with exclusive access to the name, job title, department, work location, work and home address, personal cellular telephone number and personal email address of all newly hired employees within 30 days of their hire – and every 120 days thereafter.

More recently, the state legislature passed Senate Bill 866, which requires that state employees who wish to reduce or eliminate their mandatory union dues payments in the wake of Janus must make such a request exclusively to the union rather than their employer, and the employer must rely upon the union’s representation as to which employees have chosen to pay or not pay union dues.  Further, a public employer may not send mail or email to its employees about their right to join or refrain from joining a union unless the employer facilitates the delivery of similar messages from the union.

The California State Assembly also passed Assembly Bill 2577 (Assembly Member Adam Gray, D-Merced), which allows union members to deduct the amount they pay in union dues from their income taxes.  This statute is obviously designed to reduce the cost of paying union dues, and it is estimated that it will cost California taxpayers more than $600 million over the next three years alone.

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Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations…

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations and discipline, leave and accommodation requests, and general employee relations matters. She also counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising employee handbooks under federal, state and local law.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.

Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.