Supreme Court Expected to Kill Agency Fees for Public Sector Unions

Supreme Court Expected to Kill Agency Fees for Public Sector Unions

The US Supreme Court heard arguments on Monday in the case of Janus v. American Federation of State, County and Municipal Employees, in which the court appears poised to strike a blow to organized labor by cutting off a major source of revenue for unions representing public sector employees. The plaintiff, Illinois state employee Mark Janus, is not an AFSCME member but pays “agency fees” to the union in return for benefiting from its collective bargaining activities—a practice allowed by the court in the 1977 case Abood v. Detroit Board of Education. Janus, represented by the anti-union National Right to Work Committee, contends that these fees violate his First Amendment rights by forcing him to fund an organization that engages in political activities with which he may disagree.

The Supreme Court came close to striking down Abood in a separate case in 2016, but deadlocked 4–4 after the untimely death of Justice Antonin Scalia that February left its conservative wing without a fifth vote. Now, with the conservative Justice Neil Gorsuch filling its ninth seat, the court is widely expected to rule in Janus’s favor, NPR’s Nina Totenberg explains:

To get a feel for the court’s thinking, take a glance back to the argument in 2016. The teachers union, joined by the state of California, contended that fair-share arrangements prevent strikes and internal strife by providing a single elected union for the state, acting as employer, to deal with, as opposed to competing unions and groups of employees.

In many close controversies, Justice Kennedy is the justice most likely to be open to persuasion, but he is something of a purist on First Amendment free speech questions. Two years ago, he disputed the characterization of those who didn’t want to pay partial union fees as “free riders.” Rather, he said, the union was making them into “compelled riders.”

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Several States Raise Minimum Wage, Relax Marijuana Laws

Several States Raise Minimum Wage, Relax Marijuana Laws

The upset victory of Donald Trump in the presidential race was the biggest change to come out of Tuesday’s elections in the US, but it was not the only decision made at the polls with major consequences for business and HR. Voters in several states participated in referenda or ballot initiatives whose outcomes will affect hiring, compensation, and other HR policies.

Marijuana Legalization Moves Ahead

California, Massachusetts, and Nevada all passed ballot measures legalizing recreational marijuana use. Arizona voters rejected a legalization initiative while another, in Maine, is too close to call, so the state is looking at absentee ballots (Update: Maine’s ballot initiative ultimately passed by a narrow margin and went into effect January 30). Measures to legalize the use of medical marijuana succeeded in Arkansas, Florida, and North Dakota, while Montana liberalized its existing law on medical marijuana. After Tuesday’s votes, 28 states plus Washington, DC have legalized marijuana use for some purpose, either medical or recreational.

This national tide may have an impact on employers’ drug policies. In short, because marijuana remains illegal at the federal level, employers are still on fairly solid legal ground to maintain zero-tolerance policies, but these policies need to be communicated clearly and we may see more litigation over medical marijuana-related disability claims. Employment lawyers tell SHRM’s Lisa Nagele-Piazza that employers in states where medical use has been legalized may want to specifically address it in their drug policies:

Particularly if they are card holders for medical marijuana, employees may think that because it is legal, they are protected, [Danielle Urban, an attorney with Fisher Phillips,] noted. However, only a few states actually provide employment protections for card carriers. Employers should also note that some states, like California, have very restrictive drug-testing rules, [Oagletree Deakins attorney Austin] Smith said. Therefore, if employers want to test employees more often, they need to know what limits their state puts on drug testing.

So Do Minimum Wages

Arizona, Colorado, and Maine all passed referenda raising the minimum wage to $12 an hour by 2020, and Washington state voted to raise its pay floor to $13.50 an hour by the same year. A South Dakota referendum that would have lowered the minimum wage for employees under 18 from $8.55 to $7.50 failed decisively. Bloomberg’s Jordan Yadoo explains the economic debate that motivated South Dakota to vote on the question:

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