The U.S. Supreme Court recently stated that public-sector employees must affirmatively agree to pay union dues; unions may no longer take agency fees from nonconsenting public employees. In Janus v. American Federation of State, County and Municipal Employees, Mark Janus, a public employee in Illinois, refused to join his union because he opposed its positions. However, Illinois state law required non-members to pay an “agency fee” (i.e., a percentage of the full union dues) to cover union expenditures attributable to the union’s collective bargaining activities. Janus sued.

The Court stated that the “First Amendment is violated when money is taken from nonconsenting employees for a public-sector union.” Specifically, requiring public employees to pay agency fees compels them to “subsidize free speech on matters of substantial public concern.” “[N]either an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” Public-sector unions are now required to obtain affirmative consent from employees to participate in a union, not just provide a mere opt-out option.

Many state public-sector union laws are predicated on a 40-year-old case that permitted imposing such agency fees. Affected states will now be forced to review how they will effectuate union participation without violating Janus. Employers are likely to see a response to this case from state legislatures going forward.