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August 1st, 2018
employment
SUPREME COURT STRIKES DOWN FAIR SHARE FEES FOR PUBLIC SECTOR UNIONS

On June 27, 2018, the United States Supreme Court decided in a 5-4 decision that public sector unions may no longer collect “fair share” fees from non-members.  The decision in Janus v. American Federation of State, County and Municipal Employees, Council 31, has broad implications for public sector unions and employers.

Fair share fees are charged to employees who fall within a bargaining unit but choose not to join the union. Employers may deduct the fees directly from the employee’s paychecks and pay the money over to the union. The Court’s decision prohibits employers from continuing to withhold fair share fees. 

The plaintiff in Janus argued, and the Court agreed, that being required to pay the fair share fees to a union violated his First Amendment right to free association.  The Court described the fees as “unconstitutional exactions” that cannot be allowed to continue.  Because nonmembers are waiving their First Amendment rights by allowing these payments, employee consent to the payments must now be freely given. 

As a result of the Janus decision, employers should cease deducting fair share fees from employees’ paychecks.  Employers should notify all fair share employees and unions of the decision and changes.  Employers should obtain an updated list of members from their unions, consistent with their collective bargaining agreements.  Employers should also review their agreements or consult with counsel regarding timing for individuals to opt in or opt out of membership.
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