The Right to Work Debate is Over. Public Section Unions Cannot Compel Employees to Pay Agency Fees

The Supreme Court in Janus v. AFSCME recently rendered a decision that will have a major impact on public sector unions. It determined that a public sector union's practice of charging "agency fees" to employees who choose not to join the union violates the First Amendment of the United States Constitution.

The rationale behind the decision starts with the idea that unions are political actors. Therefore, requiring agency fees is equivalent to compelling employees to contribute financial support to the union's political views, regardless of how that employee might feel personally. The Court stated this is a form of compelled speech in violation of an employee's First Amendment rights.

This noteworthy decision overturned a prior Supreme Court decision from 1977 that allowed public sector unions to charge agency fees, so long as those fees were not used for political activity. But the Court in Janus, perhaps echoing the ever-increasing polarization of our political process, decided that such a distinction is no longer viable. In other words, the Supreme Court embraced the concept that unions are inherently political entities and cannot compel employees to provide them financial support.

What does Janus mean for Minnesota specifically? It means Minnesota is now a "right to work" state. Minnesota's large public sector unions can no longer rely on a state law to allow negotiations on a union security clause mandating employees to pay an agency fee in proportion to union dues related to collective bargaining expenses. Consequently, if thousands of state and local employees decide, in the wake of Janus, not to be part of the union, significant budgetary cuts could result.

In the short term, Janus requires unions to determine the best way to communicate its message to the workforce. The first step in that analysis is to understand how Janus interplays with the National Labor Relations Act. That understanding is necessary to ensure dissemination of the message in Janus does not result in an unfair labor charge.

In the long term, Janus will likely require unions to make innovative changes to draw in and retain membership. Such innovations will no doubt alter the dynamic of the collective bargaining process with employers; they will have to use creative negotiation tactics geared toward convincing employees that union membership provides value.

Employers seeking guidance on how to properly communicate the message of Janus to their employees, or how Janus will impact their specific business operations, are encouraged to contact Quinlivan & Hughes, P.A.

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