In yet another significant victory for employers, the United States Supreme Court has held that the First Amendment prohibits public sector unions from collecting mandatory “agency fees” from non-union members who do not consent to the payment of fees.  The Court’s ruling in Janus v. AFSCME, Council 31 overturns prior precedent that allowed public sector unions to collect these mandatory fees from employees who choose not to be a part of the union.


A 1977 Supreme Court case, Abood v. Detroit Board of Education, upheld the constitutionality of state laws requiring public sector employees covered by a collective bargaining unit to pay agency fees to the union, even when they chose not to be a part of the bargaining unit.

In recent years, the Supreme Court questioned whether Abood should be overruled.  In its 2014 decision Harris v. Quinn, the Court held that collecting mandatory agency fees from home health aides in Illinois was unconstitutional, but it limited its holding to just the employees at issue in the case.  Many predicted that Abood would be overturned in 2016 in Friedrichs v. California; however, Justice Scalia’s passing led to a 4-4 decision upholding mandatory agency fee statutes.

The Court’s Decision in Janus 

Justice Alito authored the 5-4 opinion ruling that requiring mandatory agency fee payments from bargaining unit employees violated the First Amendment. The Court explicitly overruled Abood, noting that the case had been “an outlier among the Court’s First Amendment cases.”

The Court’s ruling in Janus prohibits states and public sector unions from automatically deducting agency fees from non-consenting employees, and only allows such fees to be deducted if the employee affirmatively consents to the payment of the fees and there is “clear and compelling” evidence that this consent was freely given.

What This Means for Employers 

As a direct result of the decision in Janus, all state laws permitting the collection of mandatory agency fees from non-consenting public sector bargaining unit members are unconstitutional and no longer enforceable.  Though this decision is limited to the public sector, the impacts of this decision extend far beyond that scope, as it severely limits union fundraising abilities.  We can expect to see a strong reaction from both unions and state legislatures in an attempt to mitigate the effects of this decision.  As always, your Stoel Rives attorneys will keep you updated with further developments and are available to answer any of your questions.