June 27, 2018: Fair Share Fees Ruled Unconstitutional

In a 5-4 decision, the U.S. Supreme Court ruled that mandatory fair share fee deductions for public employees are unconstitutional.  The case addressed situations in which fair share fees are deducted automatically from the wages of employees who are included in a bargaining unit but who decline to join the union.  The Supreme Court held that such mandatory fair share fee deductions violate the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.  The Court opined that mandatory fair share fee deductions force public employees to subsidize a union, even if they strongly object to the positions the union takes in collective bargaining and related activities.

Under the Court’s decision, fair share fees no longer can be required from nonconsenting employees.  According to the Court, deductions that do not require the affirmative consent of the employee violate the First Amendment’s free speech clause and cannot continue.  The Court found that a fair share fee cannot be deducted from a nonmember’s wages unless the employee affirmatively consents to the deduction.

For Illinois public employers, fair share fees typically are deducted automatically from the wages of nonmembers, pursuant to the collective bargaining agreement and without any affirmative consent from the employees.   Pursuant to today’s Supreme Court opinion, such public employers should take the following action:

  • Immediately stop deducting fair share fees from the wages of employees who are fair share fee payers.
  • If there is a pending payroll that will include fair share fee deductions and that cannot be altered prior to processing the payroll, we suggest that public employers run the payroll but not transmit the withheld fair share deductions to the union.  Rather, the amounts deducted should be returned to the employees at the first opportunity.  It is our opinion that reimbursement should occur for any deductions made after the date of the Court’s decision, even if the deductions are attributable to the 2017-2018 fiscal year (or some other period preceding the Court’s opinion).

Employers may distribute factual information to their employees regarding the Court’s decision and its effect relating to fair share fee deductions.  If you would like our assistance in preparing such a communication, please contact us.

The Court’s decision in Janus v. American Federation of State, County, and Municipal Employees can be found here:  https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf

Should you have any questions about this decision and its potential impact, do not hesitate to contact one of our attorneys by e-mail or phone at (630) 313-4750.