The Supreme Court’s landmark decision in Janus v. AFSCME invalidating union “agency shop” fees has raised many questions for New Jersey school districts and other public employers. The impact of the ruling is complicated by New Jersey’s passage of the “Workplace Democracy Enhancement Act,” which expands public unions’ access to prospective and existing members.
Supreme Court’s Janus Decision
In Janus, a divided court held that public-sector “agency shop” arrangements run afoul of the First Amendment. The court also expressly overruled its prior decision in Abood v. Detroit Board of Education, in which the court held that the First Amendment did not prohibit governments from requiring non-union public employees to pay their share of dues for collective bargaining, contract administration and grievance adjustment, as long as those fees were not used to fund “nonchargeable” expenses toward “ideological activities unrelated to collective bargaining.”
Janus involved a legal challenge to the Illinois Public Labor Relations Act, which provided that a union representing public employees may collect fees (a “proportionate share” of the costs of collective bargaining and contract administration) from non-member employees on whose behalf the union also negotiates. New Jersey, 21 other states and the District of Columbia had similar laws in place.
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While the lower courts concluded that they did not have the authority to overturn Abood, the Supreme Court did, concluding that the Abood decision was inconsistent with First Amendment principles. “The state of Illinois’ extraction of agency fees from non-consenting public-sector employees violates the First Amendment,” Justice Samuel Alito wrote on behalf of the majority.
He further explained:
“States and public-sector unions may no longer extract agency fees from non-consenting employees… 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.”
Accordingly, under Janus, public unions cannot make any deductions from nonmembers’ wages unless workers “affirmatively consent.” Put more simply, the Supreme Court has stated public unions must allow nonmembers to “opt-in” rather than continuing to make deductions from wages until they “opt-out.”
Workplace Democracy Enhancement Act
In May, Gov. Phil Murphy signed the New Jersey Workforce Democracy Enhancement Act into law, in part to lessen the impact of the court’s anticipated ruling in Janus. The new law aims to ensure that public unions are able to carry out their statutory duties by having access to and being able to communicate with the employees they represent, as well as new and prospective members.
For instance, the Workplace Democracy Act grants unions the right meet with and obtain the contact information of new hires. They are also entitled to meet with individual employees on the premises of a public employer, during the work day, to investigate and discuss grievances, workplace-related complaints and other workplace issues. Unions may also use public employer email systems to communicate with their members, as well as government buildings to meet with members, as long as the communications involve collective bargaining agreements, grievances and other workplace-related complaints and issues.
The Workforce Democracy Enhancement Act also allows for the authorization of payroll deductions for union dues and fees, which may run afoul of the Supreme Court’s recent decision. For example, a provision of the new law specifically provides that an employee may revoke such an authorization by “providing written notice to their public employer during the 10 days following each anniversary date” of the employee’s employment. The public employer is then required to inform the union of the withdrawal, with the withdrawal taking effect 30 days after the anniversary date.
Ongoing Legal Challenges
The Workplace Democracy Act provision modifying the procedures for an employee to withdraw authorization for payroll deduction of fees to employee unions is now the subject of an ongoing lawsuit. The suit, Thulen v. American Federation of State, County and Municipal Employees, alleges that the restriction on when union members can resign and stop paying dues runs afoul of Janus and the U.S. Constitution. The Mackinac Center Legal Foundation filed the lawsuit on behalf of three Lakewood municipal inspectors. The plaintiffs want the court to declare that the 10-day limit set forth in the Workplace Democracy Act is void and seeks an injunction against its enforcement.
“Constitutional rights apply all year, not just during New Jersey’s 10-day window, which is arbitrary and restrictive,” commented Patrick Wright, vice president for legal affairs at the Mackinac Center. “The Supreme Court’s Janus decision reaffirmed public workers’ First Amendment rights of free speech and association. The purpose of the New Jersey law is to stifle these rights even before they can be exercised.”
Other states with high percentages of union workers have also taken legislative action to lessen the blow of the Janus decision. Not surprisingly, some of the laws have also been met with lawsuits. Accordingly, the courts must now directly address the measures that states like New Jersey may take to resolve this important collision.
John G. Geppert runs the public law section at Scarinci Hollenbeck—read his full bio here.