February 18, 2020

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Public Sector Employees in Three States Sue to Nix Fair Share Fees

Four Pennsylvania school teachers, two Santa Clara Valley Medical Center pharmacists, and three New York school workers have filed separate suits challenging the constitutionality of state requirements permitting the unions that represent them to require them, if they do not join and pay dues, to pay a “fair share fee” (similar in amount to the dues paid by union members) toward their union representation.

In Abood v. Detroit Board of Educ., 431 U.S. 209 (1977), the Supreme Court held that fair share fees were constitutional and that employees could be compelled to pay them as a condition of employment “insofar as [they] are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.” The Pennsylvania, California, and New York public sector employees (represented by the National Right to Work Legal Defense Foundation) seek to overturn that precedent and have the fees outlawed. They argue that the fee requirements violate their First Amendment rights.

In Friedrichs v. California Teachers Assoc., 136 S. Ct. 1083 (2016), the Court had an opportunity to reconsider its decision in Abood. The plaintiffs had argued that their First Amendment rights were violated when the government, through a collective bargaining agreement, required the employees to pay a fair share payment to a union whose views they did not necessarily wholly share. However, following the death of Justice Antonin Scalia, who was widely expected to cast the fifth vote against the California fair share fee requirement, the Court split 4-4. (The tie vote resulted in an affirmance of the lower court decision upholding the fees.)

President Donald Trump is expected to announce his choice to fill the Supreme Court vacancy on February 2. If, as anticipated, he nominates a conservative jurist who is confirmed by the Senate, the likelihood will increase greatly that Abood will be overturned and fair share fees will be ruled unconstitutional.

Jackson Lewis P.C. © 2020


About this Author

Ian B. Bogaty, Jackson Lewis, labor arbitration lawyer, contract administration attorney

Ian B. Bogaty is a Principal in the Long Island, New York, office of Jackson Lewis P.C. Since joining the firm in 2004, he has practiced in traditional labor law areas such as collective bargaining, labor arbitration, contract administration and representation and unfair labor practice proceedings before the National Labor Relations Board and improper practices proceedings before the Public Employment Relations Board.

Mr. Bogaty also regularly counsels clients in the development and completion of preventative labor and...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...