Today, as expected, the U.S. Supreme Court held that agency shop provisions in labor contracts constitute “compelled speech,” and therefore violate the First Amendment. The bottom line of the decision is that employers with agency shop arrangements should immediately discontinue agency fee deductions from employees’ paychecks but continue to process deductions for voluntary membership dues. For reasons discussed below, effectuating the Janus decision may trigger other obligations under California state law.
For over 40 years, “agency shop” provisions of collective bargaining agreements have been upheld pursuant to the Supreme Court’s landmark decision in Abood v. Detroit Board of Education. Agency shop provisions are an employment arrangement in which employees must either join the union and pay membership dues, or otherwise pay a service or “agency” fee to the union.
Agency shop provisions have been targeted for years by various citizen groups asserting they violate the First Amendment. The central argument is that it is unconstitutional to force an employee to contribute to a cause or association with which the employee disagrees. In 2016, the Supreme Court took up the question in Friedrichs v. California Teachers Association, but the Court deadlocked 4-4 because of the death of Justice Antonin Scalia, and the lower court’s decision following Abood was effectively upheld.
Illinois public employee Mark Janus sought to overturn Abood again. On Wednesday, June 27, 2018, the United States Supreme Court released its decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, reversing Abood in its entirety.
THE JANUS DECISION
Mark Janus’s Supreme Court brief can be found here, and AFSCME’s brief can be found here. The Supreme Court held oral argument in Janus on February 26, 2018.
In a written opinion by Justice Samuel Alito, the Supreme Court held that Abood should be overturned in its entirety on First Amendment grounds. Specifically, the Court held that an agency fee arrangement “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” Four justices dissented.
Although 18 states filed a brief arguing that agency shop provisions were unconstitutional, California was among the states that supported agency shop arrangements. Over the last year, the California Legislature has passed a number of laws designed to diminish the effect of the Janus decision on unions and maximize the likelihood that employees will agree to voluntary dues deductions.