Several of our last workers’ compensation blog posts have dealt with the recent Supreme Court decision Janus v. AFSCME. Here, we will discuss how this case is poorly decided, as the logic that the Court uses just does not match up.
The Big Argument in Janus
The problem in Janus was pretty straightforward: A public sector, non-union worker did not want to pay an agency fee to his local union. He claimed that he did not like the political stance of the union. He claimed that paying an agency fee was like being forced to speak against his will, and against the First Amendment’s right to free expression.
The Supreme Court bought this argument. In their decision, which fell 5-4 along party lines, they decided that agency fees were “compelled speech” that violated the First Amendment.
Unfortunately, that is not how agency fees work.
Agency Fees Cannot Pay for Political Activity
In the states that still allow agency fees—Missouri is still one, so long as Proposition A does not pass and make Missouri a “right to work” state—unions have to split expenses. They can have expenses for advocacy and political lobbying, on one hand, and non-political expenses for collective bargaining and workplace safety, on the other.
Agency fees—paid dues that are required from non-union members—can only go towards the latter. They cannot be used for political purposes.
When they are used for political purposes, agency fees from non-union members violate the First Amendment unless non-union members expressly allow them to be used that way. This was one of the results of a prior Supreme Court case, Knox v. SEIU.
Instead, agency fees have to go towards the expenses that a union accumulates doing non-political activity—like conducting collective bargaining or representing workers with grievances.
Compelled Speech Problem Vanishes
When you consider how agency fees actually work, and how they cannot fund political action, the “compelled speech” problem disappears. By their very nature, agency fees cannot make political statements. Instead, they can only be used for union activities that are non-political.
Without this central problem that the case presented, the logic that the Supreme Court uses to prohibit agency fees folds like a house of cards.
Many news outlets have called Janus v. AFSCME one of the Supreme Court’s most politically motivated decisions in decades. With so much of the ruling based on what seems like a basic misunderstanding of how agency fees work, it is hard to disagree.
St. Joseph Workers’ Compensation Attorneys at the Smith Law Office
Unfortunately, unions face a free rider problem without agency fees. This will cripple their ability to advocate for workers’ rights—both in the workplace and in the political world. One of these rights that we will see weakening are workers’ compensation rights, leaving you unprotected if you get hurt on the worksite.