We're celebrating 10 Days of Membership! Today's Gift: $20 off your professional membership with promo 10DAYS20OFF
Training, policies and tools to help HR prevent and respond to harassment claims.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Develop your HR competencies and knowledge in-person in 12 U.S. cities or virtually.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Two state employees contesting the constitutionality of the Illinois Public Labor Relations Act (IPLRA) section that allows public employee unions to charge "fair share" fees to nonmembers have lost their appeal to the 7th U.S. Circuit Court of Appeals, setting up possible U.S. Supreme Court review.
Prior to his passing, Judge Antonin Scalia suggested that the Supreme Court should overturn a prior decision (Abood v. Detroit Board of Education) that allows public employee unions to charge partial fees to nonmembers. The Abood decision found that the unions could not charge full union dues to nonmember employees within the bargaining unit because unions spend a portion of those fees on expressing political views and contributing to political candidates. Because the First Amendment does not allow state actors to force individuals to pay for political and ideological speech that they do not agree with, the Abood decision required that public unions only charge nonmembers for those expenses directly relating to contract negotiations and representing the bargaining unit. These are often called agency or fair share fees.
Since the Supreme Court decided Abood in 1977, more recent Supreme Court decisions have further narrowed the extent to which state actors can compel speech by objecting individuals. This has called into question the continuing vitality of the Abood decision and the legality of public union agency fees in general. Seeking to overturn Abood, in 2015 the governor of Illinois, Bruce Rauner, filed suit in federal district court to stop public employee unions from collecting agency fees, arguing that the IPLRA violated the First Amendment by compelling employees who disapprove of the union to contribute money to it.
[SHRM members-only platform: SHRM Connect]
The district court dismissed Rauner's complaint because he lacked standing to sue as he was not subject to compulsory union dues. Before dismissal, however, two state employees who were not members of their union—Mark Janus and Brian Trygg—moved to intervene in the suit as plaintiffs seeking to overturn Abood. In dismissing the governor's complaint for lack of standing, the district court allowed Janus and Trygg to intervene.
However, the district court dismissed their claims on separate grounds. Before he intervened, Trygg had stated religious objections to contributing to the union and was seeking to pay an equivalent amount to a charity instead of the union, in accordance with an exception to the IPLRA for religious objectors. The Illinois Court of Appeals granted Trygg his requested relief, and Trygg did not contest the constitutionality of the IPLRA in that prior litigation. Trygg's claim was thus barred by the prior state court ruling.
Janus' claim was dismissed on the ground that the claim was currently barred by the Abood decision, under which fair share fees are currently considered constitutional. For Janus to succeed in striking down these fees in general, he would have to appeal to the Supreme Court, obtain Supreme Court review and convince the Supreme Court to overturn the Abood decision.
Janus v. American Federation of State, County and Municipal Employees (AFSCME), Council 31, 7th Cir., No. 16-3638 (March 21, 2017).
Professional Pointer: The recent enactment of right-to-work laws in many states and changes to constitutional law will likely impose further limitations upon compulsory union fees and membership. Employers with unionized workplaces must consider the diverging interests and rights of dissenting nonmember employees, as they may be asked by unions to take actions against nonmembers that are not permitted by these increasing restrictions.
Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.
Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Your session has expired. Please log in again before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
Choose from dozens of free webcasts on the most timely HR topics.
SHRM’s HR Vendor Directory contains over 3,200 companies