Supreme Court Rules Public Employees Are Not Required to Fund Unions in Big Win for First Amendment Rights



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Kim Crockett 612.388.2820

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Decision affects thousands of Minnesota teachers, state and local government employees

In a landmark decision for First Amendment rights, the U.S. Supreme Court today ruled that public employees cannot be compelled to pay union fees as a condition of employment. The 5-4 ruling in Janus v. AFSCME restores the First Amendment rights of freedom of association and free speech to more than five million government employees nationwide. The decision is likely to decrease the funding and political clout of powerful public employee unions in Minnesota and 21 other non-right-to-work states.

Weighing a case brought by Mark Janus, an Illinois child support specialist, against the American Federation of State, County and Municipal Employees, the High Court ruled that forcing Janus to pay agency or “fair-share” fees to cover the cost of collective bargaining violates his First Amendment rights because collective bargaining is inherently political. In Minnesota, fair share fees are about 85% of full union dues.

The ruling appears to require that employers of “fair share” fee payers must stop deducting fees immediately until they have affirmative consent from the employees to do so.  Center of the American Experiment estimates that 10,000 or more public employees who pay fair share fees will immediately see an increase in their paycheck with the end of forced union fees.

The High Court ruled, “States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither 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.”

Union bargaining affects matters of public policy such as taxes, spending and the policies of government, and thus no citizen, even if employed by the government, should be forced to subsidize it.

In Minnesota, most of the 34,000 plus state employees (about 98%) are represented by a union. Another 251,000 part-time and full-time employees are employed by municipal governments; about 54% are represented by a union. The majority are employed in the K-12 and higher education systems including 81,000 K-12 public school teachers and support professionals. Public employees make up about 13% of the state workforce, according to the Census Bureau’s Survey of Public Employment and Payroll and the Bureau of Labor Statistics.

“After forty-one long years of second-class citizenship, the First Amendment rights of teachers and other public employees have been restored,” said Kim Crockett, Vice President and General Counsel at Center of the American Experiment, “They can no longer be forced to subsidize the political agenda of Education Minnesota, AFSCME, the SEIU and other public-sector unions.”

Over the next several months, American Experiment will point public employees, both agency fee payers and union members, to the information they need to stop paying agency fees or union dues.

While the Janus case addressed employees who are not members of the union, the decision opens the door for union members to also opt out of union membership and the payment of dues.

Some government unions have tried to pre-empt the impact of the anticipated outcome of the Janus case.

For example, teachers were all asked to sign a “Membership Renewal” with Education Minnesota that attempts to lock in membership and union fees, and limits teachers to a narrow seven-day window to opt out (September 24 to September 30).

Other union cards set complicated opt-out periods and procedures based on anniversary dates that employees often do not know, and that unions often refuse to provide. As a result, more litigation is expected.

“These union agreements, designed to frustrate employees, are under legal challenge,” explained Crockett. “Now that the Court has restored the First Amendment rights of public employees, these union agreements are not expected to survive but it could take time. We encourage the state legislature to simplify the opt-out process for all public employees. In the meantime, the Center will publish information as it becomes available.”

Minnesota K-12 teachers can find more information at “Educated Teachers MN” at and sign up for email alerts.