Janus v. AFSCME: Supreme Court Strikes Down Union “Agency Fees” As Violation of First Amendment

In a long-awaited opinion, the United States Supreme Court, by a 5-4 vote, ruled in Janus v. AFSCME that “agency fees” charged to unionized public employees constituted an unconstitutional violation of their First Amendment free speech rights. 

The Court’s decision in Janus reversed a 41-year old precedent in Abood v. Detroit Board of Education. In Abood, the Court had held that public employees could not be compelled to pay that portion of union dues that were attributable to the costs of the union’s political activities. However, Abood held that charging unionized public employees for the costs associated with collective bargaining and other ostensibly non-political activities (so-called “agency fees”) did not violate the First Amendment.

The Court reached a different conclusion in Janus, finding that charging public employees agency fees “compelled them to subsidize private speech on matters of substantial public concern.”  The Court concluded that union speech, even solely viewed in the context of collective bargaining, involves private speech on matters of substantial public importance. “In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters. …[U]nions express views on a wide range of subjects – education, child welfare, healthcare, and minority rights, to name a few.”  Accordingly, the Court held that agency fees compel public employees to subsidize union speech on matters on which they may disagree with the union and, in so doing, violates their constitutional right to not only speak freely, but “to refrain from speaking at all.”  “Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”  In sum, the Court found that “a significant impingement on First Amendment rights occurs when public employees are required to provide financial support for a union that takes many positions during collective bargaining that may have powerful political and civic consequences.”

In its decision, the Court responded to a number of objections that had been raised in response to the claim that agency fees violate the First Amendment. Of particular significance, was the objection that eliminating agency fees would allow for “free riders,” i.e., unionized employees who enjoy all the benefits derived from having the terms and conditions of their employment collectively bargained by their union, but who are not required to provide any financial contribution to that effort. The Court dismissed the “free rider” objection finding that while “[t]he union may not negotiate a collective bargaining agreement that discriminates against non-members, … [i]ndividual non-members could be required to pay” for services such as union representation of them in grievance matters or other union-provided services.

The Janus decision already has generated significant activity in the California Legislature to address the impact on unions resulting from the loss of agency fees. In the following Legal Alert, we analyze the various bills passed by the Legislature that either anticipated the Janus decision or are in direct response to it.