Labor and Employment Law

Ca. Labor & Emp't Rev. September 2018, Volume 32, No. 5

Janus v. AFSCME: Employees’ Perspective

By Kerianne Steele and Eric Wiesner

Kerianne Steele is a shareholder at Weinberg, Roger & Rosenfeld in Alameda. She provides general representation to labor unions, primarily in the public sector. She helped unions throughout California prepare for the Janus v. AFSCME decision and implement Assembly Bill 119 (regarding access to new employee orientation), and thereafter implement the Janus decision and Senate Bill 866 (regarding Janus impacts). Eric Wiesner is an Associate in the Alameda office of Weinberg, Roger & Rosenfeld. In addition to representing and advising unions in all aspects of labor and employment law, he represents plaintiffs in wage and hour class action litigation in both state and federal court.

Introduction

In Janus v. AFSCME,1 the U.S. Supreme Court overturned an Illinois statute that allowed unions representing public employees to collect agency (or "fair share") fees from those electing not to join the union. The purpose of agency fees is to help cover the costs of providing representation to nonmembers, which unions are required by law to do. At the time of the decision, twenty-two states, the District of Columbia, and Puerto Rico had enacted statutes authorizing similar agency fee provisions. The five-justice conservative majority held that unions may only charge public employees agency fees if the employee has affirmatively consented to pay them. The majority reasoned that collective bargaining with government employers is inherently political because of the impact that it can have on public budgets. According to the majority, mandating that nonmembers pay a fee to the union results in certain employees being forced to fund political speech with which they disagree.

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