BREAKING….Supreme Court Issues Decision In Janus v. Afscme Co. 31 – Agency Shop Deemed Unconstitutional and Agency Fees May Not be Continually Deducted Without Affirmative Employee Consent

The wait is over. For better or worse, this morning the United States Supreme Court issued what may well prove to be the most important public-sector labor law decision of the last 50 years.  By a 5-4 majority the Supreme Court’s conservatives in an opinion authored by Justice Alito have held in Janus v. AFSCME Co. 31, 585 U.S. ___ (2018), that so-called agency shop arrangements – provisions under state law or in collective bargaining agreements that mandate that all members of a bargaining-unit pay a service fee to the union representing the bargaining-unit whether the employee wants to be represented by the union or not – violate the First Amendment free speech rights of objecting employees by requiring them to subsidize private speech on matters of substantial public concern.  A copy of the majority and dissenting opinions in the case can be found here. Please note: as the Janus decision addresses constitutional and related issues that are only applicable to public sector employers, it does not directly impact private sector employers.

We have written about the potential importance of the Janus decision previously, and will have more to say in coming weeks.  For now though here are a key points and unresolved questions to be aware of:

  • Existing Agency Fee Payers – This is big. The Court holds the following with respect to agency fee deductions:

Neither an agency fee nor any other payment to the union may be deducted from a nonmember's wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed . . . Rather, to be effective, the waiver must be freely given and shown by "clear and compelling" evidence . . . Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met. 

What does this mean? The Court in no uncertain terms  stated  that employees who are not members of the union must affirmatively consent to have agency fees deducted.  Practically speaking, this likely means that agency fee payers should NOT have agency fees continuously deducted from their pay checks unless and until such employees give some sort of “clear and compelling” evidence of that intent – i.e. a signed agency fee deduction authorization card or something like it.  Essentially, the Court’s ruling requires employee “opt-in” for continued agency fee deductions, not employee “opt-out.”

  • Union Obligations to Fee Payers – State law defines bargaining-units and imposes duty of fair representation requirements on unions. The Court’s decision in Janus is a federal law decision – namely a decision under the First Amendment of the federal Constitution which, pursuant to the Constitution’s Supremacy Clause, supersedes state law. Accordingly, unless and until the state labor laws are amended, Connecticut public-sector employee unions will still be required to represent non-members in collective bargaining matters – i.e. contract negations and grievance adjustment -- even if such employees refuse to pay anything to the unions that are legally obligated to support them. Expect union efforts to address this in the General Assembly very soon – although there may not be an easy legislative “fix.”

As mentioned above, we will certainly have more to say on the Janus case in the coming weeks.  Stay tuned….

Posted in Legislation

This blog/web site presents general information only. The information you obtain at this site is not, nor is it intended to be, legal advice, and you should not consider or rely on it as such. You should consult an attorney for individual advice regarding your own situation. This website is not an offer to represent you. You should not act, or refrain from acting, based upon any information at this website. Neither our presentation of such information nor your receipt of it creates nor will create an attorney-client relationship with any reader of this blog. Any links from another site to the blog are beyond the control of Pullman & Comley, LLC and do not convey their approval, support or any relationship to any site or organization. Any description of a result obtained for a client in the past is not intended to be, and is not, a guarantee or promise the firm can or will achieve a similar outcome.

PDF
Subscribe to Updates

About Our Connecticut Health Law Blog

Alerts, commentary and insights from the attorneys of Pullman & Comley’s Health Care practice on legal developments affecting hospitals, physician groups, pharmaceutical and medical device companies as well as other health care providers and suppliers.

Other Blogs by Pullman & Comley

Working Together

Education Law Notes

Recent Posts

Archives

Jump to Page