United States: Supreme Court Rules That Public-Sector Agency-Shop Arrangements Violate The First Amendment

Executive Summary: On June 27, 2018, the U.S. Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31 struck down an Illinois law requiring public employees represented by a union to pay agency fees to the union even though the employee is a non-member, objects to positions taken by the union and has not consented to payment of the fee, holding the law "violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern." The Court's decision overrules its 1977 decision in Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977).


The Illinois Public Labor Relations Act (IPLRA) permits state employees and employees of its political subdivisions to unionize. Under the IPLRA, individual employees represented by a union "may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer," and the union must "provide fair representation for all employees in the unit, members and nonmembers alike."

The IPLRA allows unions to charge represented employees who are not union members an agency fee to compensate for the costs incurred in "the collective bargaining process, contract administration" and related matters but expressly excludes "union expenditures 'related to the election or support of any candidate for political office.'"

The Petitioner Mark Janus (Janus) refused to join the American Federation of State, County, and Municipal Employees, Council 31 (Union) because he opposes, among other things, "many of the public policy positions that [it] advocates" and the positions it takes in collective bargaining. Janus "was required to pay an agency fee of $44.58 per month."

Janus claimed "that all 'nonmember fee deductions are coerced political speech' and that 'the First Amendment forbids coercing any money from the non­members.'" After losing in the district and appellate courts, Janus sought review in the Supreme Court. The Court granted certiorari to consider whether it should "overrule Abood and hold that public-sector agency-fee arrangements are unconstitutional."

The Court's Decision:

In a lengthy opinion, the Court reviewed its prior decisions on the constitutionality of agency fees under the First Amendment and the standard of review applied, and ruled that the IPLRA was unconstitutional under the "exacting scrutiny" standard applied in Knox v. Service Employees and Harris v. Quinn. "Under 'exacting' scrutiny... a compelled subsidy must 'serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.'"

The Court applied the exacting scrutiny standard of review "to the justifications for agency fees adopted by the Court in Abood" and "then to alternative rationales proffered by respondents and their amici." First, the Court found that the "labor peace" justification cited by the Abood Court was not a compelling rationale noting, among other things, the actual experience of certain federal employees, postal service employees and the "millions of public employees in the 28 States that have laws generally prohibiting agency fees" who are represented by unions. The second justification for agency fees cited by the Abood Court, "the risk of 'free riders,'" likewise was found not to be a compelling interest by the Court, since "the First Amendment does not permit the government to compel a person to pay for another party's speech just because the government thinks that the speech furthers the interests of the person who does not want to pay." The Court noted that the benefits conferred on a union as the exclusive bargaining representative "greatly outweigh any extra burden imposed by the duty of providing fair representation for nonmembers." The Court also rejected the argument that the union's duty of fair representation justified agency fees, since "[t]hat duty is a necessary concomitant of the authority that a union seeks when it chooses to serve as the exclusive representative of all the employees in a unit" based on the restrictions that are placed on nonmembers' individual rights.

After rejecting the Abood Court's justifications for agency fees, the Court examined and rejected the alternative arguments in support raised by respondents and amici including the arguments that "public employees were understood to lack free speech protections" by the framers and that the Court's decision in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., supported the constitutionality of agency fees. Finally, the Court determined that stare decisis did not "require" the Court to retain Abood based on "the quality of Abood's reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision." The Court concluded its analysis by holding that agency fees are unconstitutional stating:

This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember's wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. [citations omitted]. Rather, to be effective, the waiver must be freely given and shown by "clear and compelling" evidence. [citations omitted]. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.

Employers' Bottom Line: The Court's decision in Janus will have far-reaching impact on certain public-sector employers, their unionized workforce and the affected unions in states with laws that allow unions to collect agency fees. Public-sector employees who are not union members will no longer be required to pay agency fees, which no doubt will have a significant negative financial impact on public-sector unions. It is likely that agency fee payors will not agree to become full dues-paying members. Likewise, it is also likely that some full dues-paying members will now withdraw from membership. We believe the major public-sector unions could lose in excess of $100 million annually as a result of this decision. Much of that money has historically been used to fund political candidates and/or referendum issues at the state and local level. To combat the loss of these funds, we expect public-sector unions to make every effort to convert agency fee payors to full dues-paying members. Local and state governments favorable to unions may also try to legislate around the impact of Janus to the extent that is possible.

It is unlikely that this decision will directly impact private-sector unions since the case turned on the government's inability to limit an employee's First Amendment rights, an analysis that does not extend to private employers.

We have not heard the last of this issue. Congressional democrats have introduced the Public Service Freedom to Negotiate Act, which would allow for the deduction of union fees authorized by employees. Additionally, the National Right to Work Foundation has created the Janus Task Force to provide free legal services to employees who do not want to pay agency fees or be represented by a union.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions