The end of the recent U.S. Supreme Court term brought with it the most consequential labor law ruling in recent memory. On Wednesday, June 27, 2018, the Court held that public sector employees who are represented by a union, but are non-members of the union, cannot be compelled to pay money to cover the union’s cost of representing the non-member. In a major victory for opponents of organized labor, the Court overruled long-standing precedent allowing public sector unions to compel so-called “agency” or “fair share” fees from non-consenting members.

By way of background, when a union is designated as the exclusive bargaining representative for a group of employees, individual employees may opt out of joining the union. However, in many states, including Connecticut, non-member employees of a government bargaining unit are generally still required to pay what is known as an “agency fee,” i.e., an amount of money that is usually less than member union dues. The union can then use those agency fees for a variety of reasons, including political lobbying for positions that employees may not agree with.

In Janus v. AFSCME, Council 31, No. 16-1466, the petitioner Mark Janus worked for an Illinois state agency. Janus’ job position was covered by a union bargaining unit, but he was a non-member, and he opposed many of the union’s political positions. He therefore challenged the union’s ability to compel an agency fee to cover the cost of representation. Janus’ main argument was that compelled agency fees were a First Amendment violation because it amounted to coerced political speech.

Justice Samuel Alito authored the majority opinion and agreed that compelled agency fees are a violation of First Amendment free speech rights. Justice Alito brushed aside the possibility of a “free rider” problem, reasoning that “the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.” Justice Alito did leave the door open to agency fees where an individual “clearly and affirmatively consent[s]” before deduction of such fees.

As Justice Elena Kagan noted in her vigorous dissent, the Court’s decision likely “wreaks havoc” on existing labor contracts affecting millions of government employees. Public sector unions should expect to see a decline in the number of non-members paying agency fees. Consequently, public sector unions are faced with the daunting task of making necessary adjustments to attract and retain members to fund union dues.

Connecticut public sector employers should consult with labor counsel to identify immediate ramifications, as the impact of Janus must be assessed on a case-by-case basis. While compelled agency fee provisions are now unconstitutional, employers must assess whether employees have already provided affirmative consent to such payments. Employers should expect to see at least some consenting employees revoking such consent.

Janus is certain to have far-reaching consequences, many of which are yet to manifest. With Justice Anthony Kennedy’s retirement and the likely shift to a more conservative Supreme Court, subsequent labor law decisions are likely to further curtail union activity in general. While Janus represents a sea-change in labor law, the full impact upon organized labor as a whole is yet to be realized.


Photo of Matthew K. Curtin Matthew K. Curtin

Matthew Curtin is a Partner in the Litigation Department, the Chair of the Privacy and Cybersecurity Practice Group and a member of the Labor and Employment Practice Group.

In Matthew’s cybersecurity practice, he advises clients on compliance with state, federal and international privacy laws including the Health Insurance Portability and Accountability Act (HIPAA) and the General Data Protection Regulation (GDPR). Matthew is particularly interested in advising his clients concerning employment privacy matters. Matthew is a member of the International Association of Privacy Professionals.

In Matthew’s labor and employment practice, he has successfully represented employers of all sizes concerning a wide variety of claims before state and federal courts, the National Labor Relations Board, the Connecticut State Board of Mediation and Arbitration, the Connecticut State Board of Labor Relations, the Connecticut Commission on Human Rights and Opportunities, and other various administrative agencies.

Matthew has substantial experience with collective bargaining negotiations, labor arbitrations, and labor relations. He regularly counsels senior management and human resources professionals concerning employment contracts, employment policies, hiring and termination procedures, workplace investigations, and harassment and discrimination avoidance.

Matthew has significant experience representing businesses in litigation concerning trade secret theft, unfair competition, and breach of non-competition and non-solicitation agreements.