The United States Supreme Court avoided striking down fair share fees as unconstitutional when it issued its ruling today in a federal class action, Harris v. Quinn. In this case, Carroll Burdick filed with the Supreme Court an amici brief on behalf of a national coalition of public safety employees’ unions, urging the court to rule in a manner that leaves the law of fair share fees intact. That is exactly what the court did here.

Although it is fortunate that the high court did not find fair share fees unconstitutional—which could have crippled certain unions that rely upon charging nonmembers for representational costs—the high court issued a foreboding signal that it may, in the not-too-distant future, strike down decades of law stating fair share fees are constitutional.

Significantly, the Supreme Court went out of its way to signal it would consider limiting or banning collection of fair share fees altogether in a future challenge. The court did not need to go that far because it issued a narrow ruling that does not impact decades of law stating fair share fees are constitutional. The court ruled that home health workers in Illinois cannot be required to pay SEIU fair share fees because the union’s authority and responsibility in this instance are quite limited. The terms and conditions of employment are determined by the “customer” who receives in home services, except for pay, which is set by statute. SEIU has no authority regarding grievances. Under circumstances like this, where workers are only “partial” public employees, payment of fair share fees cannot be compelled.

Comment: Although unnecessary to its holding, the high court expressed hostility toward fair share fees and union shop in general, just as it did in its 2011 decision, Knox et al., v. SEIU, Local 1000, which set rules regarding special assessments (requiring opt-in, Hudson letters each time, and that the union bears all financial risk as to cost estimates). In Knox and again today in Harris, the court went beyond its narrow holding to attack the legitimacy of its own precedents, including decades of well-established law upon which many unions have relied for decades to pass along some of the costs of representation to nonmembers. The same conservative justices in Knox formed the Harris majority, and Justice Alito penned both decisions. Based on this, it might seem that the current majority does not believe fair share fees are unconstitutional, but it is also possible that a majority holds the opposite belief and is waiting to strike down the law of fair share fees in a future case it believes is better suited for such a ruling—for example, a challenge that is broader than Knox and one brought by nonmembers who, unlike the petitioners in Harris, are undisputedly public employees. It is clear that litigation will not end until another Supreme Court decision issues on this matter.

If you have any questions, please contact Jonathan Yank at jonathan@majlabor.com.