On June 27, 2018, the Supreme Court of the United States issued its decision in Janus v. AFSCME1. By a 5-4 vote, SCOTUS ruled that public employee unions cannot require non-members to pay union dues, even if those employees are benefiting from the services provided by the union. 28 states already had “right-to-work” laws on the books, meaning that unions in those states were already precluded from collecting fees from non-union members. This ruling makes that ban a national standard.

The case centered on a child-support specialist for the Illinois Department of Healthcare and Family Services, Mark Janus, who argued that he should not, as a non-member of the American Federation of State, County, and Municipal Employees (the union representing him) be required to pay even a limited fee to cover the cost of collective bargaining. Janus argued that the $45 in union dues deducted from his paycheck each month violated the First Amendment because it forced non-members to associate with political ideas with which they did not agree.

Justice Alito, writing for the majority, agreed with Janus that government “extraction of agency fees from nonconsenting public-sector employees violates the First Amendment.” In doing so, the court overruled its 1977 decision in Abood v. Detroit Board of Education, in which it held that a union could require non-members to pay agency fees as long as it did not use the fee to advance political or ideological issues. The Court in Janus found that Abood did not provide a “clear or easily applicable standard” to separate fees for collective bargaining from those from political activities. In her dissent, Justice Kagan accused the court of “weaponizing the First Amendment in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” “Its decision will have large-scale consequences,” Kagan said. “Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces.”

Although the decision only affects public sector employees, some early commentators such as Kenneth Thomas2, executive director for the New York Construction Alliance, have argued that Janus does not signal the end for organized labor and construction trade outfits. Thomas said it could spark a discussion within the private sector about how construction trade unions collect and spend dues and how they engage with private-industry players.