Public employees in three different federal circuits filed lawsuits this week challenging the constitutionality of public unions' right to require nonmembers to pay agency fees (also known as "fair share" fees). The plaintiffs bringing these suits against their respective unions include four public school teachers in Pennsylvania, three public school workers in New York, and two state-employed pharmacists in California.

While agency fee arrangements vary from state to state, they generally involve a public sector union charging certain fees to nonmembers of the union as a condition of employment. Under the 1977 Supreme Court decision Abood v. Detroit Board of Education, such fees may be used lawfully by public unions to finance representative activities like collective bargaining, contract administration, and grievance adjustment, but not to finance political activities.

This latest wave of litigation around agency fees comes after public unions received an unexpected reprieve in the Friedrichs v. California Teachers Association case heard by the U.S. Supreme Court last year— an outcome signaling that the agency fee battle is far from over. The plaintiffs in Friedrichs argued that a California state law permitting unions to charge dues of all employees in a particular bargaining unit as a condition of continued employment violated their rights under the First and 14th Amendments of the U.S. Constitution.

The legal community widely expected the plaintiffs to prevail and the Supreme Court to overrule Abood; however, the death of Justice Antonin Scalia before the Friedrichs decision was issued prevented either side from obtaining a majority. Instead, an evenly divided Supreme Court issued a per curiam order affirming the Court of Appeals decision below, with the result that agency fee arrangements with public sector unions throughout the country have continued to be enforceable.

Opponents of agency fees are hopeful that President-elect Donald Trump will appoint a conservative justice to the vacancy on the Supreme Court and that the Court will overturn Abood. These newly filed lawsuits join Janus v. AFSCME, a case currently on appeal in the Seventh Circuit, as possible contenders for cases that could bring the agency fee issue back before the Court.

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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