The U.S. Supreme Court could soon outlaw public-sector unions from requiring nonmembers to pay dues or fees as part of a lawsuit which aims to dramatically change national labor law.

Lead plaintiff Mark Janus and two other Illinois state workers argue that mandatory dues violate their constitutional rights under the First Amendment. The lawsuit is aimed at reversing a decades-old ruling by the court which affirmed the right of labor groups to collect fees from nonmembers.

Labor unions in many states can require workers to pay a fee if they decide to become nonmembers. The fair-share fee can only cover the cost of representing that worker and not political activities. The lawsuit argues public-sector collective bargaining and political lobbying are indistinguishable.

The American Federation of State, County and Municipal Employees (AFSCME) is the primary target of the lawsuit. AFSCME Council 31 has represented the state workers despite them opposing the union. The eventual aim is to end mandatory dues or fees for all public-sector workers by setting a precedent at the highest court.

Janus v. AFSCME could become one of the most influential labor-related lawsuits in the country’s history. It touches upon fundamental federal laws that have shaped how Americans have worked throughout modern history.


1.) How It All Began 

Illinois Republican Gov. Bruce Rauner set the wheels rolling for the eventual challenge back in 2015. The governor issued an executive order, at the time, directing the state to stop taking union fees from state workers who were not union members. He also filed a lawsuit in federal court, asking it to affirm his decision was legal.

Illinois Democratic Attorney General Lisa Madigan and some state unions moved in to counter the lawsuit. They argued the governor didn’t have standing to bring the lawsuit because he didn’t have to pay union dues or fees. A person with legal standing has a right to bring a lawsuit because they were harmed by a law or action.

Right to Work Legal Defense Foundation (NRTW) and the Liberty Justice Center (LJC) stepped in when they noticed the case was in trouble. They offered legal assistance to the three state workers, who opposed having to fund union activities. A federal judge later ruled that the three state workers did have standing while the governor did not.

The Seventh Circuit Court of Appeals ruled against the lawsuit March 21 by affirming an earlier district court decision. The decision opened the door for an appeal to the highest court. The Supreme Court decided to accept the case Sept. 27 after hearing similar cases in recent years.


2.) The Janus Argument

Mark Janus and the other state workers are basing their claim on a First Amendment challenge. The U.S. Constitution bans compelled speech, which includes being forced to fund political activities. Abood v. Detroit Board of Education allows unions to require dues so long as nonmembers have the option of paying the nonpolitical fair-share fee.

“The argument that Mark Janus is making is that in the public-sector, any money paid to the union is political speech,” Renne Sloan Holtzman Sakai partner Tim Yeung told InsideSources. “You cannot force an employee to do that under the First Amendment. So this is a direct attack on what we call agency fees, by public employees.”

The lawsuit argues that all activities conducted by public-sector unions are political in nature. Labor unions engage in collective bargaining to negotiate the wages, benefits, and working conditions for the workers they represent. Public-sector collective bargaining deals with the allocation of government resources and other activities the lawsuit argues are political.

“Public employee unions and collective bargaining are inherently political in that circumstance because what we’re talking about is the allocation of resources and tax dollars,” Deborah La Fetra, a senior attorney at the Pacific Legal Foundation, told InsideSources. “In the Abood case, the Supreme Court said you could do that, mostly because they had a completely unrealistic sense of what a public employee union does, and how it works in terms of the political arena.”


3.) The Union Argument

AFSCME is likely to base much of its case on the argument that optional dues encourage workers to free-ride. Unions are obligated to represent everyone in a workplace once they get voted in as the exclusive representative, regardless of whether they are funded by all employees. The argument is that workers will decide not to pay knowing they’ll get the benefits anyway.

“The core of their substantive argument is going to come back to this free-rider concept,” Nelson Cary, partner for the law firm Vorys, Sater, Seymour, and Pease, told InsideSources. “They’re going to argue, I believe, that discharging this responsibility as the exclusive bargaining representative costs money. The fair-share fees are the vehicle to obtain those funds.”

Cary adds that the unions will likely argue that mandatory fees serve a compelling state interest in keeping labor peace. Laws or policy that impact fundamental constitutional rights are evaluated by the court using a strict scrutiny test. That test requires that the law have a compelling state interest to justify its impact on constitutional rights.

“I think unions are going to argue that they’re not charging people for pure political speech or political lobbying,” Yeung said. “This is contract administration, collective bargaining, issues which really do not infringe on core First Amendment and free speech issues. They’re going to argue that if you don’t require everyone to pay something, you’ll get what is known as the free-rider effect.”


4.) Overturning Abood

The U.S. Supreme Court has already ruled in favor of the union position. Its decision in the 1977 case Abood v. Detroit Board of Education found that unions could require fees from nonmembers. The decision also established the rule that nonmember fees could not go to political activities.

“They looked at what other cases rested on Abood and essentially argued if you reverse Abood, are you going to have to reverse these other decisions?” Cary said. “It will be interesting to see what kind of traction that gets with the Supreme Court.”


5.) Worker Choice or Union-Busting

Labor unions have often argued that optional union dues are nothing more than an underhanded attempt to undermine them. They argue that unions are critical to ensuring workers get the benefits and protections they deserve. Others counter that it’s really about making sure workers have the freedom to choose.

“The public employee who chooses not to join a union, you can presume they are choosing not to join the union for a reason,” said La Fetra, who has written extensively on this and other related cases. “They cannot support the union’s approach to the allocation of public resources, and they would prefer to be independent.”


6.) But What About Free-Riders?

Labor unions have often used the free-ride argument against lawsuits challenging mandatory union payments and right-to-work laws. Unions are required to represent every single worker once they become the exclusive representative for a workplace. But exclusive representation in itself comes with a benefit that unions often neglect to mention.

“They certainly do get some benefits,” La Fetra said. “They don’t get to vote for the union leadership or anything else. They don’t have any voice in what the union is actually doing. These are nonmembers that we’re talking about. But that issue does come up as why should the union represent workers who don’t want to join. That’s the issue raised in the Hill case that’s still pending.”

Hill v. Service Employees International Union deals more directly with the question of compelled association. Illinois personal care assistants already have the right not to fund their unions because of an earlier Supreme Court case which found they weren’t technically state employees. Hill furthers the challenge by arguing that those workers should also have the right not to be represented by the union either.

“That’s still waiting there in the pool to be figured out,” La Fetra said. “That raises the exclusive representation question where independent employees don’t want to be represented by the union. We’ve always argued no, the union should have to represent nonmembers.”

Policies like right-to-work laws do not prevent workers from joining a union. Labor unions also have the ability to form member-only unions which aren’t obligated to represent nonmembers. They generally decide not to become member-only unions because exclusive representation blocks other labor groups from trying to organize an established bargaining unit.


7.) Ending the Opt-Out Tilt Towards Unions

Labor unions cannot require nonmembers to fund political activities. But even the option to opt-out has drawn considerable legal scrutiny. The Janus case might also argue that the policy should change towards an opt-in system instead. That would mean that the union must first get consent before it can use dues for political purposes.

Labor unions have also been known to deploy methods to discourage workers from opting out. A common method uses what are known as opt-out windows. Workers in those unions can only opt-out during certain times of the year. Sometimes information is not readily available to workers either.


8.) Friedrichs Part Two

Rebecca Friedrichs and nine other teachers mounted an identical challenge against the California Teachers Association (CTA). The teachers argued that their union engaged in activities that they fundamentally disagreed with. Their lawsuit also sought to prove that public-sector union activities are political by nature.

“It’s basically a repeat of a case from last year from California, known as Friedrichs,” Yeung, who practices labor and employment law, said of the Janus case. “It is a direct attack on the old Supreme Court case Abood v. Detroit which said, back then, that even public employees who choose not to be in a union, they can be forced to pay fees to the union to cover the expense of representing them.”

Friedrichs and the other teachers eventually lost the case after the death of Justice Antonin Scalia. His death split the court which resulted in a tied vote by the justices. A split decision defaults to the lower-court. The lower-court, in that case, ruled against the teachers.

“I think the arguments are going to be largely what we saw in Friedrichs,” La Fetra said. “There hasn’t been any big cases that are going to have to be argued. So, the arguments themselves are pretty well settled. The unions are going to have to decide how much they’ll want to fight this.”


9.) What Past Cases Tell Us 

Friedrichs followed another similar challenge from 2015 known as Harris v. Quinn. The Illinois Public Labor Relations Act allowed labor unions to collect fees from personal care assistants who were not state employees but collected Medicaid funds. The Supreme Court ruled the providers could not be compelled to fund the union since they were not state employees.

“It’s the third time, in four years I believe, it’s the third time in four years that this issue will be before the U.S. Supreme Court,” Cary said. “It’s interesting for me to see how it’s going to play out this time around.”

The court was faced with the question of whether home healthcare providers were public-sector employees. Public-sector workers in many states can be required to fund the union which represents them. The Janus case has a much broader scope. The state workers are already considered public employees. A decision in their favor could impact all government workers.


10.) The Impact On Unions 

Labor unions could potentially face a significant loss if the justices rule in favor of the state workers. But the true impact is still unknown since its unclear how many workers will actually choose to leave. Membership is likely to go down, but many workers could decide that being in a union is right for them.

“It depends entirely on what the union has to offer,” La Fetra said. “If they offer real benefits that members feel are worth the money, then people will pay for it. That’s what it really boils down to.”

Federal employees already have the right not to pay union dues or fees. But union membership is still fairly high when it comes to the federal workforce. Labor unions also exist in every single right-to-work state. Those states have outlawed mandatory dues or fees as a condition of employment.

Labor unions still have a lot to lose if the lawsuit ends mandatory union dues in the public-sector. The Bureau of Labor Statistics (BLS) reported that the union membership rate stands at 34.4 percent for public-sector workers, but only 6.4 percent for private.


11.) Unions Face Other Threats

Janus v. AFSCME isn’t the only threat unions face when it comes to mandatory dues or fees. Congressional Republicans have introduced a bill aimed at making union dues and fees optional for all workers. They also must contend with other lawsuits and bills being put forth.

The Employee Rights Act (ERA) is one pending bill that could have a huge impact on labor law. The bill primarily changes union elections and how dues payments can be taken. It requires secret ballot elections, protects personal information during unionizing drives, and requires unions to undergo recertification votes every so often.

The ERA also provides protections against unions taking personal information from employees who oppose that. It also requires unions to get permission before using dues for political purposes.


12.) It All Comes Down to Gorsuch

Justice Neil Gorsuch is likely to become the deciding factor when the case reaches the court. The other justices have already ruled on Friedrichs when the court was split. They are unlikely to change their opinions. Gorsuch has since filled the vacant seat and is expected to rule on the side of the state workers.

“From my perspective, it really appears to be the same arguments,” Yeung said. “I remember listening to the arguments from Friedrichs and it was pretty clear to me how Justice Scalia is going to rule. He was going to rule to overturn Abood. I think the conventional wisdom is that Justice Gorsuch is going to do the same thing.”

The Supreme Court rarely overrules decisions it made in the past under a principle known as stare decisis. The principal is intended to promote the evenhanded, predictable, and consistent development of legal precedents. But the court has still overturned past decisions when it found there was a compelling interest to do so.

“They are working against a precedent that has been around for 40 years,” Cary said. “My hunch is they have their work cut out for them in front of the court.”

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