By Carlos S. Arévalo and Julie Proscia – SmithAmundsen LLC – www.salawus.com
On June 27, 2018, the United States Supreme Court issued a groundbreaking decision in Janus v. AFSCME eliminating the public sector fair share requirement and thus changing the face of public sector labor. The Janus case, originating in the 7thCircuit, involved an appeal over the dismissal of a complaint that sought to invalidate agency fees and to reverse the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education.
Over 40 years ago, the Abood Court established that public sector non union members could be charged or allocated agency fees or a “fair share”, by the representative union, for collective bargaining, contract administration, and grievance adjustment purposes. In today’s ruling, the Court reversed Abood and declared that “public-sector unions may no longer extract agency fees from nonconsenting employees.” Regarding Illinois’ Public Labor Relations Act provisions allowing automatic fair share deductions, Justice Samuel Alito wrote:
This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmenber’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.
Janus will undoubtedly have short and long term impacts for public sector employers and unions. Of immediate concern, and given the Court’s ruling that fair share deductions cannot continue, public sector employers need to promptly determine if there are any non-union employees who have been subject to “fair share” fees and cease collecting the fees pursuant to existing contracts now that fair share fees have been found unconstitutional. This decision also substantially impacts the bargaining of open and soon-to-expire contracts and the types of provisions that will be negotiated, including proposals that will pursue to have deduction authorizations be “irrevocable” as well as provisions that will deny representation of nonmembers in grievance proceedings unless unions are properly compensated. Janus has opened the door for a dual grievance administration system and essentially dual representation.
Given the broad and significant ramifications of this momentous decision, we invite and encourage all public sectors managers, administrators and department heads to participate in our webinar on July 9th, which will focus on Janus and its impact on public sector employers. We will discuss the following topics:
- What changes public sector employers need to make immediately for fair share employees
- The potential impact of Janus on exclusive representation
- The potential for a bifurcated grievance and disciplinary system
- How to handle open contract
- How Janus impacts closed contracts
If you have questions on this article or other employment law topics, please contact Carlos Arévalo at 815.337.5012 or carevalo@salawus.com, or Julie Proscia at 630.587.7911 or jproscia@salawus.com. Carlos and Julie are both contributors to the Labor & Employment Law Update at www.laborandemploymentlawupdate.com.
The opinions expressed in this article are solely those of the author and do not necessarily represent the official policy or position or the Illinois Chamber of Commerce.