On September 29, 2017, the U.S. Supreme Court (“Court”) agreed to hear the case of Janus v. AFSCME, et al., which involves a constitutional challenge to the “fair share fee” provision of the Illinois Public Labor Relations Act (“IPLRA”). Under the IPLRA, a public employer and union may agree that employees who are not members of the union should pay their proportionate “fair share” costs of the collective bargaining and contract administration processes. Fair share fees may not include, however, any costs associated with the expression or advancement of political or ideological views. Notwithstanding this exception, Janus argues that the fair share fee agreement violates his constitutional right to free speech because it compels him to subsidize the speech of a third party that is designed to influence government policy.
The Janus case is a direct challenge to the 30-year old Court precedent of Abood v. Detroit Board of Education, which held that fair share fee agreements are constitutional. In Abood, the Court was in part concerned with the “free rider” problem; employees who benefit from the collective bargaining and contract administration activities of the union should be required to pay their “fair share” of the costs of such activities. Nevertheless, over the past 30 years, the Court has increasingly questioned the validity of Abood’s holding and has arguably begun viewing non-member employees as “forced riders” instead of “free riders.” Most recently, in 2015, the Court granted certiorari in Friedrichs v. California Teachers Association to decide whether Abood should be overruled and issued a split decision following the death of Justice Antonin Scalia.
The Janus decision will have far-reaching implications. At present, 10,987,000 union-represented employees work in 22 states that allow fair share fee agreements. If the Court were to overrule Abood and declare fair share agreements unconstitutional, the question would then become whether fair share fees are necessary for a union to maintain its exclusive representative status or whether a union’s statutory authority coupled with membership dues are sufficient to maintain the union’s existence.