Fair Share Agency Fees Struck Down by the United States Supreme Court

June 27, 2018  |  Scott M. Lepak

In a decision widely expected, the United States Supreme Court on June 27, 2018 struck down state laws that compelled public sector union employees to pay “fair share” or “agency” dues. In Janus v. AFSCME, the Supreme Court held that laws compelling these dues from unwilling members violated the First Amendment by requiring employees to, in effect, pay for speech with which they do not agree. The Supreme Court held that unions representing public employees have to fairly represent these employees regardless of whether they were dues paying members. The Supreme Court summarized its view as follows:

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.

What’s next:

Laws, including Minnesota Statute Section 179A.06, Subd. 3, that require fair share fees to be taken from an employee’s pay check are unconstitutional.  Employers must stop current automatic fair share payment withdrawals from the checks of employees unless and until the employee fills out a form consenting to pay. Employees who opt out of paying dues will still be covered by the collective bargaining agreements. However, unions will likely address the issue of individuals who do not want to pay dues but want to access the grievance procedures in the union contracts by making these nonmembers pay for that service or be denied union representation altogether. The federal law, applicable to federal employees, which does not permit agency or fair share fees, will likely serve as the model for how public employer dues in the states that previously permitted agency or fair share dues will operate.