The Impact of Janus on the Labor Movement, Five Years Later

Janus v. AFSCME Council 31 turned five years old this past June. Happy birthday to the Supreme Court case that twisted the interpretation of the First Amendment away from the freedom of association principles that protect workers’ rights to join labor unions and instead toward an interpretation of freedom of speech that now prohibits public sector unions from charging fees to nonmembers for union representation provided.

A lot has happened in the five years since Justice Samuel Alito authored the decision, decided 5–4 along the frequent conservative/liberal split seen in important Supreme Court decisions. Two justices have retired. One has passed away. A president has been impeached, twice. Mark Janus, the named plaintiff in the case, and reflecting perhaps the two-faced Roman god who shares his name, left his job working for the Illinois Department of Healthcare and Family Services and took a position as a senior fellow at the Liberty Justice Center, a conservative anti-union organization that played an outsized role in bringing the case before the Supreme Court.

Some things have not changed. Bruce Rauner, former republican governor of Illinois who brought the original case, is still a billionaire. And public sector unions continue to survive and even grow. What did not happen was the predicted crippling of public sector unions, hoped for by those who celebrated the Janus decision.

The Janus case was the third and final act in a trilogy of cases aimed at eliminating what are called “fair share fees” or “agency fees” within public sector unions. A fair share fee is a percentage of total union dues paid by an employee covered by a collective bargaining agreement but who chooses not to join the union as a member. The fee cannot be used for political purposes and is paid to the union for the services provided to the employee through collective bargaining and for the administration of the contract. 

These fees are “fair” because even though a majority of employees in a workplace voted to have a union represent them, by law, a union is required to represent all the employees in the bargaining unit whether or not those employees have exercised their option to be full-fledged dues-paying union members. This legal obligation is called the “duty of fair representation.” Without those fees, the union is forced, at great cost, to represent nonmembers for free. Fair share fees make sure the cost of negotiating benefits is shared by all employees who receive the benefits of a union contract. If too many members opt out to receive the benefit of the union for free, the union itself might eventually collapse under the weight of required service without the resources needed to provide it.

To Justice Alito and his like-minded colleagues on the Court, fair share fees are an affront to the First Amendment as a form of compelled speech. To them, the fees aren’t about sharing the cost of a service but about “public employees . . . forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities.”

To render fair share fees unconstitutional, the Supreme Court first had to reckon with the 40-plus-year-old unanimous Abood v. Detroit Board of Education (431 U.S. 209 (1977)) opinion, which held that fair share fees in the public sector did not violate the First Amendment. The Abood court recognized that the fees did not require employees to support causes or activities unrelated to collective bargaining and that the system promotes industrial peace and stabilizes labor-management relations.

Justice Alito first referred to fair share fees as “an anomaly” in the 2012 Knox v. Service Employees International Union (567 U.S. 298) case involving a union implementing a special assessment fee. The Supreme Court then expressly whittled away at Abood in 2014 in the Harris v. Quinn case, also an Alito-authored 5–4 decision. This case concerned home health care workers represented by the Service Employees International Union who provide personal care assistance to the elderly and infirm. The National Right to Work Foundation, an anti-union organization, filed suit arguing that fair share fees in the public sector violate the First Amendment. Alito in his opinion dodged that question by characterizing the home health care workers as “partial” or “quasi” public employees rather than “full-fledged” employees, not covered by Abood. However, Alito used the opinion to foreshadow his arguments as to why Abood should be overturned in the future if the right case came before the Court.

Next came a case called Friedrichs v. California Teachers Association (578 U.S. ___ (2016)), an explicit vehicle to overturn Abood. Justice Antonin Scalia spoiled that effort by shuffling off his mortal coil between oral arguments and the issued decision, which left only eight justices on the Supreme Court. Ties go to the lower court, and four justices to four left the Ninth Circuit’s upholding of fair share fees to stand.

Finally, in the summer of 2018, Justice Alito got his case, and with the help of Justice Anthony Kennedy singing his pre-retirement swansong, and support from Justices John Roberts, Clarence Thomas, and Neil Gorsuch, the Court overturned Abood and outlawed public sector fair share fees.

The anti-union conservative organizations gloated over the decision. The National Right to Work Foundation described Janus as “a massive step forward in the fight to protect American workers from forced unionism.” They boasted of depriving unions of hundreds of millions of dollars.