Agency Fees May Not Be Required
The Supreme Court heard arguments on a case out of Illinois – Harris v. Quinn – this past week about whether or not workers can be forced to pay fees to a union whether or not they belong to the union. A case that, in the words of Justice Elena Kagan, “…would radically restructure the way workplaces across the country are… run.” A more clear assessment of the stakes could not have been articulated!
The basic facts are quite simple; the legal question much less so. The state of Illinois administratively recognized home health care workers as state employees because they are primarily compensated through Medicaid. This decision brought hundreds of workers under the Service Employee International Union (“SEIU”) whom the state had recognized as the exclusive bargaining representative. About 40% of the workers had opted-out of becoming a union member. These non-members are charged an “agency fee” equal to about 1/3 less than full union dues.
The crux of the concern lies with these non-members who have come to be known as “free riders,” specifically an employee who does not wish to join a union and therefore does not have an obligation to pay union dues. Currently the law allows unions to charge these individuals an agency fee. The rationale is that non-union members of the bargaining unit benefit from the union’s bargaining efforts, and therefore must share in the cost of that bargaining.
Recent Supreme Court case law illustrates the path that brought the Court to this point. InLehnert v. Ferris Faculty Association, 500 U.S. 507 (1991) Justice Scalia defended the notion that unions are compelled to represent non-paying non-members and allowing “free riders” would be an overreach of government.
“In the context of bargaining, a union must seek to further the interests of its non-members … Thus, the free ridership (if it were left to be that) would not be incidental but calculated, not imposed by circumstances but mandated by government decree.” Lehnert at 556. – Justice Antonin Scalia
Court watchers are speculating that Justice Scalia may be the swing vote in the Illinois case, so much depends on whether he holds to his words from 1991. The court in 2014 has a decidedly more conservative makeup than 1991, and common thought is – more employer friendly.
This is illustrated by Service Employees International Union v. Knox, slip opinion No. 10-1121, a case heard in 2012 by this Court. In the opinion, the Court’s conservative majority held that agency fees are an “anomaly” under the First Amendment. The Knox opinion opened the door for the challenge the Court heard this term.
In the public sector, the argument is particularly valid. Public sector employees work for government, therefore all the terms and conditions bargained for affect the state budget. This makes every bargained for term a political item. The requirement that non-members pay an assessment for bargaining would be compelling them to pay for political speech, which runs afoul of the First Amendment.
We’ll know by summer. For those who are Court watchers, the fact that Scalia, perhaps the most colorful of the Justices, could be the swing vote adds to the level of anticipation. I had a law professor once say, “You just never know with Scalia!” Stay tuned!
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