Labor unions are still able to collect “agency fees” (at least for now) following a 4-4 split decision by the U.S. Supreme Court. In Friedrichs v. The California Teachers Association, lead plaintiff and public school teacher Rebecca Friedrichs argued that a California state law violates the First Amendment right to free speech and association by compelling financial support for an organization with which she disagrees. This argument is premised on the idea that agency fees laws require public sector non-union member teachers – as a condition of their employment – to pay agency fees to the union that goes to support the union’s collective bargaining efforts; and because public-sector bargaining is inherently a political activity, non-union members are effectively being forced to finance political activity that they do not support. Friedrichs argued that non-union member public sector teachers should not be forced to pay hundreds of dollars each year to unions to which they did not belong, and in some instances did not agree with or support. Defendants – and unions who stood to lose significant funding – argued that without being forced to pay agency fees for collective bargaining work, non-union members would get the benefits of collective bargaining from the union (e.g. increased compensation, better benefits, etc.) without paying any union fees for these benefits.
The Supreme Court was poised (and expected by many) to vote 5-4 in favor of Friedrichs, dealing a serious defeat to unions. In 2014, Justice Samuel Alito provided a preview of the Court’s leaning when he wrote with regard to an agency fee case that “except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” However, the death of Justice Antonin Scalia (who at oral argument appeared to be sympathetic to the teachers’ position) lead to a 4-4 split in Friedrichs, which allows unions to continue collecting agency fees.
For now, agency fees will continue to be allowed in at least 20 states and the District of Columbia. With five agency fee cases currently pending in federal courts, it should not be long before the Supreme Court takes up the issue of agency fees once again and with a full Court we could see a different outcome and the end of agency fees. Whether that occurs likely will depend heavily on the outcome of federal elections in November.