Janus v. AFSCME: Employers’ Perspective

By Erin Kunze

Erin Kunze is an attorney in the San Francisco office of Liebert Cassidy Whitmore who provides representation and legal counsel to California’s public entities and nonprofit organizations on a variety of labor and employment law matters. She can be reached at ekunze@lcwlegal.com.

On June 27, 2018, in Janus v. AFSCME¹ (Janus), the U.S. Supreme Court held that public sector union service fees (also referred to as "agency shop" fees) violate the First Amendment. Janus overruled Abood v. Detroit Board. of Education,² the 1977 case holding that public sector employees could be required to pay service fees to the unions that represent them, as a condition of employment, even if they did not become union members. Employees cannot be required to join a union. However, Abood held that nonmember service fees were lawful as long as they were used for representational duties, and not also for the union’s political activity. Accordingly, employees could either voluntarily join a union as a member and pay membership dues, or refrain from joining a union but be required to pay the more limited service fee. Under these options, only the membership dues could include fees for political activity. In overruling Abood, the Janus Court held that employees who are not union members must provide clear and affirmative consent before a service fee or any other payment to a public sector union can be deducted Such fees, it noted, inherently touch on matters of public concern. The Janus decision, in effect, invalidated agency shop arrangements common in California public sector employment.

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