Union Members May Opt-Out of Paying Dues

On June 27, 2018, the United States Supreme Court issued an important employment law decision in the case of Janus v. American Federal of State, County and Municipal Employees (“AFSCME”). Prior to Janus, the general law was that public sector unions (i.e. unions comprised of governmental employees) could collect fees from employees even when the employee did not want to join the union. The prior law was set in the case of Abood v. Detroit Board of Education,a prior United States Supreme Court case from 1977.

In Abood, the Court held that a public employee could still be required to pay union dues to cover collective bargaining, contract administration, and grievances even if they refused to join the union. The employee could only opt out of paying a portion of fees which were used for political purposes. Much of the reasoning for that holding was that public employees would benefit from union activities and thus should have to pay for such activities; however they did not need to pay for ideological or political support which the employee did not support. Being forced to make donations to political candidates through mandatory union dues was found to be a violation of First Amendment rights.

However, the Janus ruling changed that long-followed law. Janus argued that everything a public-sector union does (including bargaining for wages) is inherently political because it involves the use of taxpayer money, and therefore all mandatory union dues protected by the First Amendment. One concern is that this could potentially have a negative effect upon democratic political support where unions are generally very active in supporting candidates.

The other concern for unions is that this will lessen their funding for union activities by allowing “free-riders” to benefit from the activities of the union without paying for them. Indeed, the Janus ruling confirmed that unions cannot differentiate between members and non-members and must represent all employees fairly. Indeed, they cannot negotiate for a collective-bargaining agreement which discriminates against non-members. In a grievance proceeding, the unions may take several different positions. They may choose to represent non-members (since the interests of an individual employee may have an impact on the collective interest of all employees); they may charge a fee for representation; or they may refuse union representation in a grievance proceeding as long as such a determination is not made arbitrarily or in bad faith.

In anticipation of this ruling by the U.S. Supreme Court, New Jersey’s Governor Murphy signed into law the Workplace Democracy Act.  This Act provides unions with special access to public employees including: the right to meet with employees during the work day to discuss grievances or other workplace issues, the right to conduct onsite meetings to discuss union activities, the right to meet with new hires within 30 days from the date of hire, and the right to contact information for all employees including: name, job title, worksite location, home address, work telephone numbers, and all personal telephone numbers on file with the employer, the date of hire, the work email address and any personal email address on file with the employer. The Act also sets forth that an employee may only revoke prior authorization for the union to deduct fees from the employee’s paycheck during the 10 days following the anniversary date of the employee’s employment. The revocation is then effective on the 30th day after the anniversary date of employment. However, a challenge to this Act has not yet been heard in New Jersey. Therefore, it is unclear whether the Act will survive a review by the Courts in light of the Janus ruling.

Indeed, the Janus ruling has not yet been significantly tested in New Jersey and therefore there are still outstanding questions as to how it may be applied or interpreted in the future.

The attorneys at McLaughlin & Nardi, LLC are experienced with employment laws, particularly in relation to protections for employees, including public employees, and can advise of both employers and employees on their rights about legal requirements in New Jersey. To learn more about what we may be able to do to help, please visit our website, or contact one of our New Jersey lawyers by e-mail or telephone at (973) 890-0004.