On the last day of the current term, a divided Supreme Court ruled that the First Amendment limits the ability of public-sector unions to capture so-called "fair share" fees. Justice Samuel Alito wrote the opinion which held that in-home care workers who did not wish to join a union could not be forced to pay fees under a union security provision of a collective bargaining agreement. The case is Harris v. Quinn. With this decision, the Court now calls into question the continued viability of Abood v. Detroit Bd. of Ed., 431 US 209 (1977), which for more than 35 years has stood for the proposition that state employees who choose not to join a public-sector union may nevertheless be compelled to pay a fair-share fee to support union work that is related to the union's representation of the collective body. Justice Alito sharply criticized the constitutional analysis in Abood, and rejected application of its holding to a group of workers who are not "full-fledged public employees."
Pamela Harris, the plaintiff, provides 24-hour care for her son, Josh who suffers from a rare genetic condition. Ms. Harris is paid for her services by the state of Illinois for that care through a Medicaid-waiver program; under state law she (along with approximately 20,000 other in-home care workers) was considered to be a state employee. In 2003, a majority of those workers voted to be represented by a local of the Service Employees International Union. Under the terms of the collective bargaining agreement, and consistent with state law, those employees were required to pay union dues or (if they refused to join the union) fair-share fees. The fair-share fees are calculated to be an amount equal to the employee's pro-rata share of the cost for negotiating for services and benefits of its members. Ms. Harris, with similarly situated in-home workers, challenged the fees as being impermissible government-imposed speech. Today's ruling agreed, holding that public sector employees have a Constitutional Right to keep their money from being directed to a union that they do not support.
The decision represents a significant roadblock to union efforts to expand their public sector presence. The holding means that the First Amendment prohibits a public sector union from requiring reimbursement for expenses incurred form these "less than full-fledged" public employees, even when the union's efforts secured benefits for those same employees. Moreover, the Supreme Court has signaled pretty clearly that union security provisions in public sector labor agreements are now on unsettled ground.
Justice Elena Kagan wrote the dissent for four of the justices; she would have held that there is no First Amendment right for public sector employees to refuse to pay association fees to a union representing them.