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Agency Shop Agreements Upheld By An Equally Divided United States Supreme Court

In the case of Friedrichs v. California Teachers Assn., 578 U. S. ____ (2016)  an equally divided United States Supreme Court affirmed the judgment of a federal appeals court upholding agency fees for nonunion members.

At issue in Friedrichs was the continued validity of “agent shop” agreements, which empower public employers to require that employees either join the union or pay equivalent dues to that union as a condition of employment. Although nonmembers are required to pay dues that support union activities relevant to collective bargaining, precedent has established that the First Amendment forbids unions from compelling nonmembers to support union activities that are unrelated to collective bargaining.  These fees are known as “nonchargeable” expenses and nonmembers are required to affirmatively opt out of such payments on a yearly basis. The petition challenged both the agency fee and opt-out regime as unconstitutional under the First Amendment. Hundreds of millions of dollars for public unions were potentially impacted by this case.

The split among the United States Supreme Court means that the agency fees and opt-out regime remain intact although on unstable footing. The petitioners indicated that they intend to seek a rehearing in the following term. Moreover, the lack of a definitive ruling encourages future challenges to the agency fees.

To read this case, please click here.

Authors: Matthew John Markling and Patrick Vrobel

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