Earlier today, PSBA provided guidance for school solicitors regarding the U.S. Supreme Court’s decision this morning in Janus v. American Federation of State, County, and Municipal Employees, in which a 5-4 majority of the court declared, in an opinion authored by Justice Samuel Alito, that involuntary “fair share” fees collected by public employers on behalf of public sector unions from non-member employees are an unconstitutional violation of the non-member employees’ First Amendment rights.  The decision overrules the Court’s 1977 decision in Abood v. Detroit Board of Education, in which it had ruled that such compelled non-member agency fees are permissible and do not violate the First Amendment rights of objecting non-member employees.

The decision strikes down an Illinois statute that is not identical to Pennsylvania’s Public Employee Fair Share Fee Law but has the same operative characteristics and effect, making it clear that Pennsylvania’s law and provisions of collective bargaining agreements pursuant to it can no longer be implemented lawfully. Consequently, as emphasized in previous PSBA alerts about this case, all collection of the fees from nonmembers of unions must cease immediately, and school employers should immediately initiate communications with the fee-payers and the affected unions to inform them of the employer’s actions and discuss next steps. It is critical that school employers consult with their solicitors as they work through this process.

The Court’s opinion (available here) concludes: “For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. Under Illinois law, if a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages. §315/6(e). No form of employee consent is required. 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.”

The full text of the PSBA guidance to solicitors is available here.

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