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Extraction of Agency Fees from Non-Consenting Public Employees is Unconstitutional

Of Counsel
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In Janus v AFSCME , U.S. No. 16-1466, the Supreme Court held on June 27, 2018 that  States and public sector unions  may no longer extract agency fees from non-consenting employees. Such extractions violate the employees’ First Amendment  right to free speech.

The decision, delivered by Justice Alito and joined by Justices Roberts, Kennedy, Thomas and Gorsuch overruled Abood v. Detroit Bd. of Ed. 431 U.S. 209, on the basis that compelling a public employee  to pay union dues (agency fees) without his consent, compels said employee to subsidize the speech of other private speakers.  Therefore, the employees’ First Amendment right to free speech is violated.

Rejecting the defendants two basic arguments, the Court held that neither the unions’ obligation to represent members and nonmembers alike, as their exclusive representative, nor the  benefits of avoiding free riders overcome the First Amendment concerns.  In this regard, the Court noted that the unions duty of fair representation to members and nonmembers alike,  “is a necessary concomitant of the authority that a union seeks when it chooses to be the exclusive representative” of a group or unit of employees.