Published in Rutgers Today
On Feb. 26, the Supreme Court of the United States will hear oral arguments in a case that could drastically change the way public sector unions operate in New Jersey and 21 other states. Dubbed “the biggest labor case of the century” by The Washington Post, Janus v. AFSCME could decide whether unions may continue to charge mandatory “agency fees” to all public employees. Adrienne Eaton, interim dean and professor in the Rutgers School of Management and Labor Relations (SMLR), explains the case and its ramifications.
What are “agency fees” and how do unions use them?
Labor law requires unions to represent all workers in a bargaining unit, including those who do not wish to join the union. The union members pay dues, while the non-members are often required to pay a reduced amount – called an “agency fee” or “fair share fee” – to cover the cost of collective bargaining and grievance handling. The fee depends on the union’s actual costs. In New Jersey, it cannot be more than 85 percent of dues.
Why do these fees exist in only 22 states?
Public sector labor laws are determined at the state level and they largely reflect the political power of the unions in each state. Blue states, in which Democrats control the governor’s office and/or the state legislature, tend to allow the collection of agency fees to pay for collective bargaining. Red states, under Republican control, generally do not allow agency fees.
Who is Mark Janus and where does he come in?
Janus works at the Illinois Department of Healthcare and Family Services. The American Federation of State, County, and Municipal Employees (AFSCME) represents his collective bargaining unit, but Janus does not want the representation and does not want to pay for it. He filed a case with support from The National Right to Work Legal Defense Foundation and the Liberty Justice Center. Janus and his lawyers argue that public sector collective bargaining is a form of political speech, since it involves union negotiations with government representatives. They claim forcing a worker to pay for that speech violates the worker’s First Amendment rights.
Has a case like this ever reached the Supreme Court before?
Yes. In 1977, Abood v. Detroit Board of Education authorized the use of agency fees in the public sector. These fees came into focus again in 2016 in Friedrichs v. California Teachers Association. It was widely believed, based in part on his questions in oral arguments, that Justice Antonin Scalia would have tilted the Freidrichs decision against the unions. However, Scalia died before the ruling and the remaining Justices deadlocked 4-to-4. With the appointment of Justice Neil Gorsuch, the Court is back to full strength and all eyes are on Janus v. AFSCME. It is important to understand that if the Court sides with Janus and against the unions, it will be upending more than 40 years of precedent.
If the Justices side with Janus, what will happen to the public sector unions and the workers they represent?
That is the million-dollar question. In the short run, unions would lose a substantial part of their revenue. Non-members would no longer have to pay the agency fees, and that may even cause some dues-paying members to exit the union. Some unions began preparing for the possibility some time ago by cutting budgets and staff. For many others, those cuts would come after the decision. Some observers, including New York Gov. Andrew M. Cuomo, have argued that this would be the end of public sector unions. I believe that is overblown. A negative decision would certainly weaken the unions, but they would adapt.
Would the ruling affect private sector unions and workers?
For employees, no. The Janus case applies only to public sector workers. For the unions, it depends. Those that represent only private sector employees should be unaffected. Those that represent both public and private sector workers will see an impact on their budgets.
Why should people care about this case?
Unions are effective at raising wages, preserving important benefits and providing some balance of power in the workplace and in politics. Research has shown that the decline of unions in recent decades is one of the reasons for the greater income inequality we see today. Weakening unions will likely exacerbate inequality and diminish democracy.
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