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The United States Supreme Court Hears Arguments In Case That Could Gut The Revenue Stream Of Public Sector Labor Unions

On February 26, 2018, the United States Supreme Court heard arguments in Janus v. AFCSME, Supreme Court No. 16-3638, a case that could decide the fate of organized labor in the United States.

At issue in Janus is the continued validity of “fair share” or “agency” fees. Over forty years ago, the United States Supreme Court ruled that public employees who do not belong to a union can be required to pay a fee that would cover the union’s costs to negotiate a contract which applies to all public employees, regardless of whether they belong to a union. The plaintiff in this case argues that the requirement that he pay such fair share fees violates the First Amendment because he is, in essence, subsidizing a group whose advocacy he opposes. The loss of fair share fees could cost unions millions of dollars and result in the transformation of organized labor in this country – if not its demise.

In 2016 the same issue appeared before the United States Supreme Court. As we reported in our April 1, 2016 blog, the Court seemed poised to strike down the requirement that public employees who do not belong to a union contribute fair share fees until the unexpected death of Associate Justice Antonin Scalia resulted in a deadlocked court.

It is widely believed that Associate Justice Neil Gorsuch, a conservative judge appointed by President Donald J. Trump to fill Justice Scalia’s seat on the bench, will provide the decisive vote against fair share fees. However, Justice Gorsuch, who already carved a reputation for himself as a dynamic presence on the bench, refused to tip his hand by failing to ask a single question during oral arguments.

Audio of those arguments can be found here.

A decision in this case is expected in June 2018. Report back then for an update regarding this pivotal issue affecting public sector labor organizations.

Authors: Matthew John Markling and Patrick Vrobel.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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