The recent Supreme Court decision in Janus v. AFSCME struck down a government union’s right to collect agency fees (usually three quarters of the normal union dues) from government employees who do not belong to the union.  The Janus holding could foreshadow a similar shift in a private union’s ability to collect agency fees from non-members in the private sector.

Private sector employees have a right not to belong to a union.  In Communication Workers v. Beck, the Supreme Court held that the union may not require members to pay for the union’s political activities.  Unions may charge objectors an agency fee, which is slightly less than the regular dues. In Beck, the union contract required employees who do not become union members to pay agency fees in an amount equal to the dues paid by union members. The non-member employees challenged the union, arguing that the union’s expenditure of their fees on activities such as political activities violated the union’s duty of fair representation and the First Amendment.  The court found that the National Labor Relation Act authorizes unions to collect only those fees and dues necessary to perform the duties relating to labor-management issues; it could not collect fees to finance political activities.  The court did not determine whether the First Amendment was violated.

In Janus, the Supreme Court addressed the payment of agency fees in the public sector context.  A majority of the court held that agency fees violate “the free speech rights of non-members by compelling them to subsidize private speech on matters of substantial public concern.”  This specifically refers to financing union activities.  Therefore, public sector employees are no longer required to pay an agency fee because it violates their First Amendment rights.

There are several interesting arguments that could be made with respect applying Janus to the private sector.  While it may seem obvious that all U.S. citizens have rights under the First Amendment, what is not widely known is that the deprivation of a citizen’s First Amendment rights can only be addressed if the violation is done by state action.  There is a line of cases holding that union rules or contracts requiring payment of union dues do not constitute state action, and thus cannot be addressed by the First Amendment.  However, in Connecticut, we have a statute, Section 31-51q, which protects employees in their exercise of rights under the First Amendment.  This could be grounds for an employee to allege, like in Janus, that their payment of an agency fee to a private union violates their First Amendment rights as provided in the cause of action in Section 31-51q.

Janus may also add further momentum to states adopting right to work laws. Connecticut is not a right to work state, meaning it does not have a law prohibiting union membership or payment of agency fees as a condition of employment in the private sector.  In states with right to work laws, and there are 28 of them now, employees can choose whether they want to be in the union even if the company is organized.  The Janus backlash may well have an effect on states to adopt legislation providing that private union members will have an option of whether they want to be in the union or not.

Finally, the Janus decision could impact the private sector in that the unions may have less money to spend on political activities if employees realize, at least in the public sector, that they no longer have to pay union dues or an agency fee.  In any event, with the publicity of Janus, more employees are realizing that they have rights within the union that they did not realize before, and this could encourage more employees to question why they are paying dues in the first place.

Since 1933, the attorneys of Berchem Moses PC have been helping individuals and businesses throughout Connecticut resolve legal concerns of all types. We can help you, too. Please contact our team of labor and employment attorneys today to discuss your specific concerns.