First Amendment Challenge to Public Sector Law Agency Fee Requirement

Tuesday, February 6, 2018

The United States Supreme Court has scheduled oral argument in Janus v. AFSCME for February 26, 2018. The case is a First Amendment challenge to an agency fee requirement under a public sector collective bargaining law requiring non-union members in a bargaining unit to pay a fee for the representation they receive in collective bargaining and in the administration of the contract. Janus v. AFSCME, United States Supreme Court, Case No. 16-1466. A ruling in Janus is expected to be issued by late June.

An agency fee requirement is a form of union security, first introduced in the private sector, and held to be constitutional in the public sector in Abood v. Detroit Board of Education, 431 U.S. 209 (1977). However, in majority decisions written by Supreme Court Justice Samuel Alito over the past few years, the Supreme Court has questioned the constitutionality of mandating non-members to pay an agency fee for representation by a certified or recognized union in the public sector.

If the plaintiff in Janus is fully successful before the Supreme Court, Abood will be reversed and an “open shop” will become a federal constitutional mandate for the first time. Such a ruling would mean that a public-sector union certified or recognized as the exclusive representative of a bargaining unit will be obligated to represent non-members for free and will still be subject to duty of fair representation claims by dissatisfied non-members.




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