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Janus v. AFSCME: Then, Now, and the Future of Public Sector Labor Law

July 18, 2018

By Lauren Hoye

On June 27, 2018, the Supreme Court of the United States issued its decision in Janus v. AFSCME, the case that many public sector labor unions had been anticipating since the Supreme Court granted the plaintiffs’ petition for certiorari last fall. The decision, which was 5-4, was split down party lines, with Justice Samuel Alito writing for the majority, and Justice Elena Kagan writing the dissent. The decision undoubtedly changes the landscape for public sector labor unions across the country by making the entire United States a so-called “Right-To-Work” country with respect to public sector employees.

Where We Came From; Public Sector Labor Law

For the past approximately 40 years, until Janus was decided in June 2018, the law of the land was set forth in a Supreme Court case called Abood v. Detroit Board of Education. Abood held that requiring non-members of a public sector labor union to pay fair share fees was constitutional. That decision was based on the fact that public sector labor unions were permitted to charge fee payers only a pro-rated amount that reflected the union’s work in collective bargaining and contract administration. That is, fair share fee payers were not required to subsidize the union’s so-called political activity, including things like lobbying. They were, however, required to contribute to the costs of things like bargaining a contract, or processing grievances filed by the union on behalf of bargaining unit members. The balance struck by the Supreme Court in Abood recognized the need for all members of the bargaining unit to do their part, and the fact that not all bargaining unit members might agree with the so-called political activities of the union.

Where We Are Now; Public Sector Labor Law

The Supreme Court overruled itself by using Janus to strike down Abood. That is, the Supreme Court held that what was once constitutional, no longer is. Under Janus, the Court held that requiring fee payers to pay any amount, even a pro-rated amount, violates the First Amendment to the United States Constitution. The Court’s rationale is that all activity by a public sector labor union is “political” activity, and so requiring fee payers to pay anything at all violates the First Amendment because fee payers may disagree with what their union does or the positions that their union takes. That is, fee payers might disagree with their union fighting for better wages or benefits for them and their co-workers, or fee payers might disagree with the union advocating for employees who were unjustly disciplined or denied due process, or fee payers might disagree with the union protecting employees’ rights to paid time-off, vacation, or holidays.

In so concluding, the majority announces that fair share fee payers can no longer be required to pay fair share fees. The opinion does not preclude employees from voluntarily paying dues or fees to the union, or from voluntarily authorizing their employer to make such deductions from their wages.

On behalf of four Justices of the Court, Justice Kagan, in her dissent, disagreed vehemently with the majority opinion. She notes that Abood struck the necessary balance between the rights of public sector labor unions and the rights of fair share fee payers, and that the majority had failed to identify any valid reason to overturn over 40 years of case law in this area. Lower courts and the Supreme Court itself had relied on Abood numerous times over the past four decades, affirming time and time again the distinction between the costs of collective bargaining and the costs of political activity. She explains: “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law – and in its economic life – for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”  Dissent, p. 26. In essence, Justice Kagan argues that the majority opinion amounts to results-driven judicial activism, as opposed to sound analysis of the law and applicable standard for overturning 40 years of case law.

Where We Are Going; Public Sector Labor Law

It has been approximately three (3) weeks since Janus was decided. In that time, labor union leaders have been reviewing the decision and constructing a path forward. Labor unions across the country are reaching out to members and non-members alike, reminding and in some cases educating, them about the value of union membership.

Certainly, public sector labor unions are concerned about how the possible loss of income from fee payers might impact their ability to effectively advocate for their bargaining unit members. At the same time, in recent weeks, some unions have noted an influx of new members, former fair share fee payers who see the value in doing their part to support the organizations responsible for negotiating their raises and benefits, among things. AFSCME Council 5 in Minnesota reported 339 new members just since Janus was decided. (See: SEIU Local 668 also reports an uptick in union membership. (See:

Commentators across the country are suggesting that Janus is going to result in stronger, more cohesive unions at the end of the day. For example, Harry Nespoli, chair of the Municipal Labor Committee, an umbrella organization of over 100 New York City municipal unions, argues that Janus is just the “wake-up call” that public sector employees and the unions that represent them needed. He suggests that “when we look back at this time period and the consequences, I believe it will be seen as a time when the result was to make unions stronger, not weaker. Working men and women will have a stronger understanding of why they and their families are better off with a union, and they will continue to pay their union dues.” (See:

Other commentators note that Janus opens the door to a new chapter for public sector labor unions. For example, Ron Bieber, President of the Michigan AFL-CIO, writes: “Working people see this court case for what it truly is, the latest effort of wealthy corporate interests to undermine our freedoms in the workplace. Workers are recommitting to unions and launching their own organizing drive because they see an economy that has been manipulated by corporate lobbyists to benefit CEOs and the wealthiest 1 percent.”  (See:

Harvard Law School professor, Benajmin Sachs, and Executive Director of the Labor and Worklife Program at Harvard Law, Sharon Block, note that “[t]here should be no mistake: This decision is the culmination of a sustained attack by political forces determined to destroy the labor movement and undermine the movement’s capacity to counterbalance corporate economic and political power.”  However, they say, “it would be a mistake to take the doom-and-gloom commentary too far.”  They go on to note that state legislatures can take a number of steps to protect public sector labor unions, including passing laws that are protective of public sector labor unions, giving unions better access to workers, and changing the way dues are paid. (See:

The long-term effects of Janus remain to be seen. Yes, there will be people who opt not to pay dues, instead allowing their colleagues, friends, and coworkers to shoulder the responsibility of advocating for their mutual gain. Yes, there will be public sector labor unions that will worry about how they will be able to fight effectively for their bargaining unit members if confronted with diminished resources. Yes, there will be members who question why they should continue to pay dues when their colleague at the next desk is paying nothing for the same representation. But there will also be non-members who do not want to abandon their colleagues and coworkers, and who come to the union now seeking to become dues-paying members. There will be public sector labor unions that will scrimp and save and do everything they can in their power to make sure that every working person gets the protection in the workplace that they deserve. And there will be members who, when faced with doubt about their ongoing commitment to the union, will stop by their coworker’s desk and talk with them about the value of being a union member, and convince that coworker to join the ranks.

What is clear is that public sector labor unions are staring down a path of significant transition, transition that will require them to spend more time organizing workers, more time talking with non-members, and more time educating all workers about the value of union membership. The Janus decision was intended to weaken public sector labor unions. However, three weeks out from the decision, public sector labor unions are more united than ever.

The labor lawyers at Willig, Williams & Davidson remain committed to fighting for working people and the labor unions that represent them. If you have questions about the Janus decision, please do not hesitate to contact us 800-631-1233.

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