Employee Can Sue Public-Sector Union Over Dues Requirement

Apublic-sector union allegedly violated an employee's First Amendment rights when it denied her request to stop paying union dues, according to a recent ruling from the 3rd U.S. Circuit Court of Appeals. The case challenged a New Jersey law that limited employees to a 10-day window each year to revoke their union dues authorization.

On Nov. 7, the circuit court partially agreed with the plaintiff and sent the case back to the lower courts to be reviewed. It rejected the employee's petition for a preventive injunction to stop the future collection of union dues from her paycheck. It also rejected her call for a declaratory judgment that the state's 10-day requirement was unconstitutional.

"It really was a matter of standing, whether she had standing to sue, and the court found she did," said Melody Rayl, an attorney with Fisher Phillips in Kansas City, Mo.

Background

In July 2018, a nurse at the county-run Essex County Hospital Center in New Jersey requested to resign from her union and cease paying union dues. A state law required such requests to be made within a 10-day period each year. The time window had expired when she made her first request, so the union denied it. The next time the 10-day period opened, the nurse asked again to stop her payments to the union, and her request was granted.  

The nurse sued the union and the county, claiming that delaying her ability to stop paying union dues violated her First Amendment rights by compelling her to subsidize union speech. She argued that the state law implementing a brief window for revoking union dues authorizations was unconstitutional. In March 2020, the union sent her a check to refund the dues, plus interest.

In June 2021, the U.S. District Court for the District of New Jersey ruled that the nurse was no longer a union member and therefore lacked standing to bring the lawsuit, so it dismissed the case. She appealed.

First Amendment Protections

The U.S. Constitution's First Amendment gives Americans the freedom to assemble without interference from the government.

"Traditionally, public-sector employees could not be compelled to join the union because of the First Amendment's protections related to freedom of assembly. The government could not compel you to join the union," Rayl explained.

However, in a 1977 case called Abood v. Detroit Board of Education, the Supreme Court ruled that public-sector employees could be required to pay agency fees, also called fair-share fees, to cover the union's cost of negotiating a contract. This excludes regular union dues that go toward other purposes.

The situation changed in 2018 when the U.S. Supreme Court held that agency fees and other forms of payment to a public-sector union cannot be deducted from an employee's paycheck, unless the employee consents to pay, according to David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. That case is Janus v. AFSCME.

Right-to-Work Laws

Similar policies apply to both private-sector and public-sector employees in so-called right-to-work states. Twenty-seven states have right-to-work laws, which hold that employees cannot be forced to pay union dues as a condition of employment. New Jersey has never had such a law. Michigan recently repealed its right-to-work law, effective mid-February 2024. Right-to-work laws vary from state to state, but most employees working for private employers are covered, along with those in the public sector, according to the group Workplace Fairness, which advocates for workers' rights.

Right-to-work laws aren't without some controversy. The Economic Policy Institute states that "by making it harder for workers' organizations to sustain themselves financially, state [right-to-work] laws aim to undermine unions' bargaining strength."

In states without a right-to-work law, unions in the private sector can require workers to pay dues through payroll deductions, even if they don't want to belong to the union, said Matthew Crawford, an attorney with Martenson, Hasbrouck & Simon in Atlanta.

"Private companies have no First Amendment repercussions," Rayl noted.