Janus v. Afscme: Employees' Perspective

• Publication year: 2018
• Author: By Kerianne Steele and Eric Wiesner

Janus v. AFSCME: Employees' Perspective

By Kerianne Steele and Eric Wiesner

Kerianne Steele is a shareholder at Weinberg, Roger & Rosenfeld in Alameda. She provides general representation to labor unions, primarily in the public sector. She helped unions throughout California prepare for the Janus v. AFSCME decision and implement Assembly Bill 119 (regarding access to new employee orientation), and thereafter implement the Janus decision and Senate Bill 866 (regarding Janus impacts). Eric Wiesner is an Associate in the Alameda office of Weinberg, Roger & Rosenfeld. In addition to representing and advising unions in all aspects of labor and employment law, he represents plaintiffs in wage and hour class action litigation in both state and federal court.

Introduction

In Janus v. AFSCME,¹ the U.S. Supreme Court overturned an Illinois statute that allowed unions representing public employees to collect agency (or "fair share") fees from those electing not to join the union. The purpose of agency fees is to help cover the costs of providing representation to nonmembers, which unions are required by law to do. At the time of the decision, twenty-two states, the District of Columbia, and Puerto Rico had enacted statutes authorizing similar agency fee provisions. The five-justice conservative majority held that unions may only charge public employees agency fees if the employee has affirmatively consented to pay them. The majority reasoned that collective bargaining with government employers is inherently political because of the impact that it can have on public budgets. According to the majority, mandating that nonmembers pay a fee to the union results in certain employees being forced to fund political speech with which they disagree.

In striking down agency fees, the Court unceremoniously overruled its own 41-year-old precedent, Abood v. Detroit Board of Education,² which authorized agency fees for nonmembers to cover costs associated with contract negotiations and enforcement, known as "chargeable" expenses, but not to cover more explicitly political or ideological advocacy, known as "non-chargeable" expenses.³ The majority questioned whether the state interests asserted in Abood, namely maintaining labor peace and avoiding free riders, justified requiring nonmembers to pay agency fees. In rejecting the state interests asserted in Abood, the majority in Janus proffered the implausible rationale that the benefits a union reaps from being designated as the exclusive representative of employees outweigh the burden imposed on it by having to represent employees who refuse to pay for the services they receive.⁴ The majority appeared content, as Justice Kagan put it bluntly in her dissent, to allow some employees to "reap[] all the 'benefits of union representation'—higher pay, a better retirement plan, and so forth—while leaving it to others to bear the costs."⁵ In sum, the Court disregarded the usual principles of stare decisis in order to upset the "stable balance between public entities' interests in running their workforces" that public-sector employers and unions had relied on successfully since Abood.⁶

As Justice Kagan aptly noted in her dissenting opinion, "[t]here is no sugarcoating" the impact of Janus.⁷ The Janus case is the latest salvo in a decades-long campaign by far-right activist groups to undermine the legal foundations of workers' rights and collective bargaining. While public sector unions across the country are responding to Janus by recommitting themselves to mobilizing existing members and organizing new ones,

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conservative legal organizations are already seeking to capitalize on the decision to promote their anti-union agenda. Specifically, these groups are arguing both in the public square and in new litigation that Janus requires public employers to stop payroll deductions even for employees who have already signed up as union members, and that unions that collected agency fee payments from nonmembers in the past should have to pay that money back. Both of these opportunistic attacks are misguided and lack legal justification.

Janus Does Not Impact the Relationship Between Public Sector Unions and Employees Who Have Voluntarily Signed Up to Be Members

In the weeks after the Court issued Janus on June 27, several states with public sector bargaining affirmed that the decision is limited to preventing public employers from...