This post originally appeared on the Vorys on Labor Blog on September 30, 2017.
The Supreme Court announced on Thursday that it will re-visit the issue of whether public-sector employees can be made to pay mandatory fees to a public-sector union despite not being a member of the union. As readers of this blog will recall, this question was at the center of a Supreme Court decision back in March 2016, where the Court split 4-4 on the issue, with former Justice Antonin Scalia’s seat not yet filled. The new case, Janus v. AFSCME, involves a child support specialist in the Illinois Department of Healthcare and Family Services who is not a member of AFSCME (the American Federation of State, County, and Municipal Employees), but is nonetheless required to pay agency fees to the union as a state employee.
With the only difference in the Court’s makeup today being Justice Neil Gorsuch, the Court could very well strike down mandatory fees in the public sector. Currently, Supreme Court precedent from the 1970s allows public unions to collect mandatory fees from all employees, both union members and non-members.
Arguments against this requirement are based on the First Amendment. One argument asserts that a person who is forced to subsidize a union they are not a member of is deprived of their right of free association with organizations of their choice. Another argument asserts that mandatory union dues or fees compels an employee to support speech with which they do not agree. Mr. Janus has written publicly about his views on mandatory union dues in an article the Chicago Tribune published at the time the 2016 case was pending.
Supreme Court observers expect oral arguments in Janus to be heard around January, with a decision to be issued sometime before the Court’s scheduled recess in June 2018. A ruling in favor of the employee will have major implications for employees, unions, public employers, and even citizens of those states where the law permits mandatory union dues for public employees.