Thursday, June 28, 2018

SCOTUS Season Concludes with a Labor Decision and a Surprise

Yesterday, the Supreme Court concluded its 2017-18 term. I'll start with the huge news that Justice Kennedy announced his retirement. Hopefully, we'll soon know who President trump nominates to replace him, and do a little employment law background check on him or her. Here is President Trumps 'short list' from November 2017.

The big news for the hour or so before the retirement announcement was that the Supreme Court issued its opinion in Janus v. AFSCME. The 5-4 majority opinion from Justice Alito is 49 pages, so I'll bypass the complicated legal analysis and cut to the conclusion:
States and public-sector unions may no longer extract agency fees from nonconsenting employees . . . . This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.
(citations omitted). This is big news and will have a big impact on states where public employee unions require a "fair share."