fair share

The Supreme Court held 5-4 in Janus v. AFSCME that state statutes allowing public sector employers and unions to agree that employees who don’t join the union must still pay their “fair share” of collective bargaining costs violate the First Amendment. The Court also held that employees must “affirmatively consent” to join the union. More than 20 states authorize “fair share” for public sector employees.

In Abood v. Detroit Board of Education (1977) the Supreme Court held that the First Amendment does not prevent “agency shop” arrangements where public employees who do not join the union are still required to pay their “fair share” of union dues for collective-bargaining, contract administration, and grievance-adjustment. In Janus, the Supreme Court overruled Abood.

If there ever was a case where the vote of only one Justice is likely to matter it is Janus v. American Federation of State, County and Municipal Employees. All attention was focused on Justice Gorsuch this morning as the Supreme Court held oral argument in this case. And he was…silent.

The Court will decide the constitutionality of state statutes allowing public sector employers and unions to agree that employees who don’t join the union must still pay their “fair share” of collective bargaining costs. More than 20 states authorize fair share for public sector employees.

In 2016 the Supreme Court was expected to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. Justice Scalia died shortly after the Court heard oral argument in Friedrichs v. California Teachers Association. The Court ultimately issued a 4-4 decision which, practically speaking, kept Abood v. Detroit Board of Education (1977) on the books.

With a ninth Justice now on the bench the Supreme Court has agreed to try again to decide whether to overturn Abood in Janus v. American Federation of State, County and Municipal Employees. More than 20 states authorize fair share for public sector employees.

Friedrichs v. California Teachers Association could have turned public sector labor law upside down. In an unsurprising move the Supreme Court issued a non-precedential 4-4 opinion affirming the lower court’s decision by an equally divided Court. This opinion continues the status quo. Had Justice Scalia not died in February this case almost certainly would have had a different outcome.  

In Friedrichs v. California Teachers Association the Court was contemplating overruling a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share.

It was a typical oral argument at the Supreme Court in a “big” case. Protesters outside with opposing messages tried to out yell each other, but everyone inside was listening to Justice Kennedy.

In Friedrichs v. California Teachers Association the Court will decide whether to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share.

If the Court doesn’t overrule Abood v. Detroit Board of Education (1977) it may instead rule that public employees may be allowed to opt-in rather than required to opt-out of paying “nonchargeable” political union expenditures.