The Supreme Court Rules in Janus against Union Agency Fee Requirements for public employees

I have been meaning to write an article about the Supreme Court's Janus v. AFSCME decision but needed time to digest the 54 pages written by Justice Alito, and the lengthy, equally passionate dissent written by Justice Kagan.

As you may have read, on June 27, the Supreme Court decision ruled in favor of Petitioner Mark Janus, a public employee of the State of Illinois, against AFSCME Council 31. AFSCME Council 31 is union that was elected or chosen to represent him and all other employees in his bargaining unit. Mr. Janus refused to pay either union dues or the optional, less expensive, "agency fees," because he did not agree with the positions that the union took during contract negotiations. He cited to the First Amendment, arguing that the right of free association gives him the option to refrain from providing any financial support to the union.

Interestingly, the decision does not state that either Mr. Janus, or his co-workers, did not want to be represented by this union. They could have petitioned to decertify, or eliminate, the union, but did not do that. He does not challenge the union’s position as the representative of the employees. Instead, he challenged the requirement to pay monthly dues to the union.

In a 5-4 decision the Supreme Court agreed with Mr. Janus, ruling that compelling public employees to pay for the union to represent them, violated their Constitutional rights because it was akin to forcing employees “to mouth support for views they find objectionable. . . “ (p. 8). As Justice Alito wrote, “[c]ompelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns.” (p. 9).

This decision overturned the 1977 decision of Abood v. Detroit Board of Education, which held that employees cannot be compelled to be a member of the union, but can be required to pay agency fees.

As background, public employees are usually required to pay either union dues or “agency fees.” Agency fees are less than union dues. The agency fees represent the portion of the union dues that supports the union’s expenses in negotiating and enforcing union contracts. Agency fees are considered to be enough to finance the costs of union representation, but not enough to finance the union’s political activities if the employee chooses not to become a full-fledged member.

Unions may not legally discrimination against non-members. Unions are legally required to negotiate terms and conditions of employment for all employees in the bargaining unit, even those who pay agency fees. They have a duty of fair representation to members and non-members alike who are part of the bargaining unit. Complying with this legal duty costs money; there are union salaries to pay, and expenses to cover. Those who choose not to pay agency fees, like Mr. Janus, have been criticized as “free riders” who obtain the benefits without any costs.

The Janus case turned the “agency fee” rule on its head. Writing for the majority, Justice Alito wrote that compelling employees to pay any form of financial dues to support an organization that espouses views they find objectionable violates the First Amendment rights to free association.

The Janus decision is, as Justice Kagan wrote, the rare decision that outrightly rejects and overturns established precedent (the Abood case), which has been favorably cited over the past 41 years. Many states have adopted laws intended to comply with Abood.

What does this mean for unions that represent public employees? Public sector unions will be financially weaker because they are expected to lose financial support or members who choose not to pay. Union dues will now be voluntary.

Without the financial support for their work, unions may choose to avoid challenging management decisions – even those that violate the union contract, due to the lack of financial involved in raising such a challenge. While civil service laws provide procedural protections and some level of job security, without a union backing them up, it may be difficult for most employees to bring a legal action on their own.

Without a doubt, the Janus decision will have profound "large scale consequences,” as Justice Kagan noted. "Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways." (p. 2).

$1.32 million paid to Parents in Landmark Case

The U.S. Supreme Court issued a landmark decision in December 2017 a special education case, Endrew F. v. Douglas County School District, which has culminated in an April 19, 2018 settlement and subsequent payment of $1.32 million to the parents and attorneys representing the student.

The parents had sought reimbursement from Douglas County School District for their son's education after they placed him in a private school for children with autism. The Supreme Court battle concerned the appropriate standard by which school officials are held, in determining if the student's rights under the Individuals with Disabilities Education Act (IDEA) were violated.

Chief Justice John Roberts, who authored the Supreme Court’s unanimous 8-0 opinion in Endrew F., wrote that "a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all." The Supreme Court ruled that, to meet its substantive obligation under the Individuals with Disabilities Education Act, a school must offer an individualized education program (IEP) that is reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances, and that there must be a showing that the student made substantive progress in order to comply with the IDEA.

New York's New Anti-Harassment Law

On April 12, 2018, the New York State Budget was signed into law, which contains significant new measures directing how private and public employers respond to, and prevent sexual harassment in the workplace. Highlights of the new law include:

• prohibiting mandatory arbitration clauses for sexual harassment claims, with the exception of valid arbitration procedures in union-negotiated collective bargaining agreements;

• prohibiting employers from requiring confidentiality clauses in settlements or agreements relating to claims of sexual harassment, unless the employee or complainant desires confidentiality;

• requiring the New York State Department of Labor and Division of Human Rights to develop a model sexual harassment prevention policy and a model sexual harassment prevention training program for use by employers;

• requiring employers to develop and distribute anti-harassment policies in the workplace and to provide anti-harassment training for all employees; and

• covering non-employees from sexual harassment, including contractors, subcontractors, vendors, and consultants; among other provisions.

• Make sure your handbooks and policies are consistent with New York's new anti-harassment law, and that the procedures followed in the workplace comply with the law.