Recently, the U.S. Supreme Court ruled that government workers who choose not to join a union cannot be charged for the cost of collective bargaining and related activities.

In a 5-to-4 decision, a majority of the Court noted in Janus v. AFSCME, Council 31, that “agency fees” violate, “the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

As we have reported before, this case stemmed from an Illinois public sector employee who challenged a requirement that government workers who opt out of a union still have to pay partial dues (known as an “agency fee”) to cover the union’s cost of negotiation and other functions associated with policing and enforcing the contract.  This decision overrules the Court’s own 41-year-old precedent, which said workers did not have to pay for unions’ political activities but could be required to contribute to other costs of representation, such as negotiating wages and benefits and processing grievances.  The Court’s decision frees those non-members from having to pay the fees.

Significantly, and what will have an immediate impact on employees and employers is that the Majority held that an employee must affirmatively consent to pay the agency fee: Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”  The Court did not specify the form this “affirmative consent” must take, but most likely will be in the form of a signature card explicitly authorizing the withdrawal of agency fees in accordance with Janus.  
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