The U.S. Supreme Court has granted certiorari in Janus v. Am. Fed'n of State, Cty. & Mun. Employees, Council 31 to decide whether it is constitutional to require public employees to pay agency fees (also known as "fair share" fees) to unions. This is the Court's second opportunity to consider this issue in the last two years.

Agency fees—while they vary from contract to contract and state to state—involve a public sector union charging certain fees to nonmembers, typically as a condition of employment. In 1977, the Supreme Court held in Abood v. Detroit Board of Education that such fees may be used lawfully by public unions to finance representation activities such as collective bargaining, contract administration, and grievance adjustment, but cannot finance political activities.

In Janus, the plaintiffs filed suit in federal court seeking to halt the collection of agency fees, arguing that the Illinois Public Relations Act violates the First Amendment by compelling employees who disapprove of a union to contribute money to it. After the district court dismissed the case, the plaintiffs appealed and asked the U.S. Court of Appeals for the Seventh Circuit to uphold the dismissal as a means of bringing the case before the Supreme Court. The Seventh Circuit obliged in March 2017, stating that only the Supreme Court could overturn Abood.

The Supreme Court's decision to grant certiorari in Janus was expected because the Court faced, but did not resolve, the same legal issue in Friedrichs v. California Teachers Association, in 2016. Friedrichs was decided just one month after the death of Justice Antonin Scalia, which led to an evenly divided Supreme Court. As a result, the Court issued a per curiam order affirming the decision of the U.S. Court of Appeals for the Ninth Circuit following Abood—with the result that agency fee arrangements with public sector unions throughout the nation have continued to be enforceable.

Before Justice Scalia's death, many in the legal community expected the Supreme Court to overrule Abood and hold that requiring employees to pay agency fees was a violation of the First Amendment. In light of Justice Neil Gorsuch's appointment to the Supreme Court and his conservative track record, opponents of agency fees are optimistic, once again, that Abood will be overturned, which could leave open questions about the potential impact on existing collective-bargaining relationships.

Attorneys in Ballard Spahr's Labor and Employment Group routinely assist and counsel public sector employers about labor issues, including collective bargaining and employment issues regarding civil rights and constitutional claims.

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