skip to main content

Publications

U.S. Supreme Court Declares Compelled Public Sector Agency Fees Unconstitutional

June 27, 2018

In a 5-4 decision, the United States Supreme Court today ruled that provisions requiring public employees to pay agency fees violate the First Amendment of the U.S. Constitution.  In doing so, the Supreme Court expressly overruled its own 41-year-old precedent.

This closely watched case arose from a challenge by an Illinois public employee to the requirement that he pay agency fees.  Prior case law prohibited public sector employees from being forced to join a union and pay union dues as a condition of employment.  However, twenty-two states permitted contractual provisions requiring employees to pay an agency fee to cover the costs of collective bargaining and contract administration.  The plaintiff in Janus argued that the requirement to pay an agency fee interfered with his First Amendment rights because it forced him to financially support his union’s political activities, even if he disagreed with them.

The immediate effect of the Court’s decision is that agency fee (or “fair share” fee) provisions in collective bargaining agreements are invalid.  The Court specifically states that agency fees and similar payments may not be deducted from an employee’s pay unless the employee has expressly consented to the deduction.  This statement suggests that employers should stop deducting agency fees unless and until an employee has affirmatively consented.  Because Connecticut law requires express employee consent for payroll deductions, Connecticut public sector employees have likely already consented to the deduction of agency fees.  However, public sector employers should be prepared for employees approaching them and requesting that the agency fee deductions be stopped, effectively withdrawing their consent.

We expect further litigation to address various issues related to this ruling.  Stay tuned for further analysis of the ramifications of this landmark decision.

© Shipman & Goodwin LLP, 2018. All Rights Reserved.