On June twenty-seventh, the United States Supreme Court handed down a 5-4 decision that affects the rights of unions and government employees, and its decision was highly controversial. See, e.g., Eli Lehrer & David Rolf, “A conservative and a liberal agree: Unions must change after Supreme Court blow on Janus,” USA Today, Jul. 3, 2018. Many commentators have argued that the Court’s ruling dealt a serious blow to unions, and both attorneys and policymakers have discussed potential options to pursue in response to that momentous decision. See id.; See also Kristin Frazao, “Unclear future for unions after Supreme Court ruling,” WJLA (Sinclair Broadcasting Group), Jul. 4, 2018. This article examines the holding in the Janus union case and discusses how attorneys and policymakers may be able to interpret and adapt to the Court’s decision.
Janus v. AFSCME was the hotly-anticipated decision that overturned a forty-year precedent with respect to public sector employees and union dues. See, e.g., Tucker Higgins, “In a blow to public sector unions, Supreme Court overturns 40-year-old precedent,” CNBC, Jun. 27, 2018. At issue in Janus was whether government employees can be compelled, as a condition of their employment, to pay fees to unions. See, e.g., id. Specifically, the plaintiff was a non-union member and argued that he should not be required to pay a fee (which is often called a “fair share” fee) that went towards unions for collective bargaining, contract negotiation, and related matters that affect the terms and conditions of public sector employment. See, e.g. id. Fair share fees of the type disputed by Janus were upheld by the Supreme Court in 1977, and such money was not considered to be used for political advocacy at that time. See id.
The plaintiff in Janus argued that requiring him to pay fees to the government union that negotiated with his employer violated his First Amendment rights, and he claimed that he was forced to pay for political advocacy that he did not necessarily agree with. See id. The Court upheld the plaintiff’s theory in a 5-4 decision, and legal analysts reacted with a mixture of surprise and thoughts on how to move forward. See, e.g., id.; See also Eli Lehrer & David Rolf, supra.
Federal and state lawmakers have considered ways to respond to the Court’s holding, and some members of the legal community have suggested various ideas to work around the Janus decision. See, e.g., id. Unions are also scrambling to adjust to Janus and budget accordingly, knowing that they cannot depend on fair share fees in the future. See, e.g., Alexei Koseff, “After ‘wake-up call’ from Supreme Court, California unions face tough political choices,” The Sacramento Bee, Jul. 3, 2018. What follows are some of the ideas being suggested, which attorneys dealing with unions should pay close attention to, and which underscore the need for input from experts.
(1). Union-like Entities: Some have suggested that instead of unions, certain non-profit organizations might be created that adhere to current laws but would perform functions of erstwhile unions. See Eli Lehrer & David Rolf, supra. As certain analysts argued, “new kinds of organizations” could be formed for the workplace. Specifically, “[s]ome of these could be created under current law, like broad-based non-profit organizations intended to represent the interests of working people as a whole — think of an AARP for workers[,] [o]r cooperative ‘trade associations’ made up of all workers in an industry — the medical and legal fields already have these types of organizations.” Id.
Attorneys could set up and manage entities of this type, and consulting experts in business associations, collective bargaining, contract negotiation, and similar matters would be indispensable in creating and maintaining such enterprises. Moreover, consultants with expertise in a particular field, such as the medical profession, could provide specialized guidance to attorneys on the best practices and policies for newly-formed organizations. These alternate organizations would operate under existing laws and regulations, and experts could help attorneys ensure that entities adhere to the rules. Experts can also testify in the event litigation arises that challenged a group’s legal status.
(2). Alternative Collection Mechanisms: Certain states have attempted to protect unions by providing ways for them to collect money from non-members or refuse such individuals certain services. See, e.g., Robert Bruno, “After Janus, 3 ways unions can stay strong,” Chicago Sun-Times, Jul. 2, 2018. New York, for example, amended its law concerning government employees recently. See id. The new law “allows public employee unions to deny representation to non-members in any disciplinary cases as well as any legal, economic or job-related services beyond those provided in the collective bargaining agreement, without violating the duty to fair representation.” Id. In Janus, the Supreme Court “majority opinion endorsed this approach by stating that individual ‘nonmembers could be required to pay for the [grievance] service or could be denied union representation altogether.’” Id.
Other states may wish to consider legislation similar to New York’s, and if they do, experts in unions and related matters may provide invaluable assistance to those crafting policy. Given that New York’s law was considered permissible by the Janus Court, attorneys and experts should be able to defend new state laws if those policies are similar to New York’s and/or otherwise comport with what the Supreme Court agreed to allow.
(3). Federal Legislation: In response to the Supreme Court’s decision, several lawmakers banded together to introduce a bill called The Public Service Freedom to Negotiate Act (PSFNA). See, e.g., Danielle Douglas-Gabriel, “After Supreme Court ruling, congressional Democrats mobilize to fight for unions,” The Washington Post, Jun. 28, 2018. As one reporter explains, “The federal legislation would give all state and local government employees protections similar to those that private-sector workers enjoy, including the right to voluntarily have union dues deducted from their paychecks.” Id. The law is also intended to provide minimum standards that every state must adhere to in order to protect the “basic rights of…public employees.” Id. If this legislation passes, it may face challenges in court, both in terms of how broadly it should be construed and whether it is permissible at all. To resolve such matters, expert witnesses who deal with labor issues may be crucial to sway judges and juries.
Various states are also considering legislative options, although some bolster the Janus decision and others attempt to thwart or work around it.
Many legal analysts felt that public sector unions, and unions in general, were dealt a major blow by the Janus case. See, e.g., Tucker Higgins, supra. However, some seasoned labor leaders have remained optimistic, and many individuals involved in policymaking and litigation have generated ways to cope with Janus and maintain the influence and capital unions rely upon to succeed. See, e.g., John Gallagher, “Why unions will survive Supreme Court anti-labor decision,” Detroit Free Press, Jun. 27, 2018. Regardless of whether those involved in issues that ensue from Janus favor unions or not, experts can be of great assistance. For policymakers, individuals, unions, employers, and attorneys, such experts can help identify and implement strategies to achieve specific goals and maximize success.