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Author: Brett Holubeck

What Happens to Labor Unions After Janus?

By now most people have heard about the Supreme Court’s decision in Janus v. AFSCME (Janus v. American Federation of State, County, and Municipal Employees, Council 31). The Supreme Court determined that public-sector employees have a right, protected by the First Amendment, to not pay agency fees. Essentially, public-sector employees should not be forced to subsidize the speech of other employees. Public-sector employees that have paid these fees no longer have to do so. Many union members may drop their membership since the cost difference between being a non-member and a union member has increased. Several states, including New York and Hawaii, have already stopped collecting agency fees from the non-members of the public-sector unions.
Everyone realizes that the decision will force labor unions to change, but no one is sure exactly how they will change. Some labor unions will continue to decline, but others may flourish in the new environment created by Janus. In addition to the Janus decision, this year has revealed a resurgence of some public-sector labor unions. Notably, teachers in Arizona, Colorado, Oklahoma, and West Virginia, struck and negotiated for higher salaries and other benefits. West Virginia is particularly noteworthy because it was the first state to conduct these strikes, the entire school system in the state was shut down for nearly two weeks, and the teachers were supposedly not able to strike.

There is no doubt that the Janus decision will force unions to rethink their past strategies. They will likely see major membership losses in the 22 states affected by the decision. However, the loss of these members may entice several labor unions to reshape their union by mimicking the actions of the teachers in West Virginia and elsewhere.

The Janus decision will also have ripple effects as related issues including exclusive representation requirements (the union must represent both members and non-members) and the rights of private sector workers in the 22 affected states are resolved. There is already an active case, Sweeney et al v. Madigan et al, alleging that a labor union should not be forced to represent non-members. According to the complaint, forcing the union and its members to “use their money to speak on behalf of the non-member” violates the First Amendment rights of the labor union and its members. Moreover, some states may adopt new laws to protect labor unions in light of the Janus decision. According to the New York Post, New York State Representative Richard Gottfried intends to introduce what he calls “a workaround” to the Janus decision. Richard Gottfried said that “public employers, as part of collective bargaining with public employee unions, should pay for the costs of operating the unions,” according to WCBS News Radio 880. This may mean that taxpayers will bear all of the cost of funding collective bargaining.

Companies, labor unions, and other interested parties will continue to file lawsuits and lobby to either expand the Janus decision or to reduce its effects. The short-term consequences of the decision are just beginning to be felt, but the long-term effects of Janus are yet to be determined.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.