Employment Law Daily Justices face public-sector agency shop arguments in Friedrichs
Monday, January 11, 2016

Justices face public-sector agency shop arguments in Friedrichs

By Pamela Wolf, J.D. The High Court will hear arguments in a case of great interest to labor and employment practitioners, particularly those who are concerned about unions or have public-sector clients. The Court’s calendar shows that on January 11, the first day of the next session, the parties in a closely watched case, Friedrichs v. California Teachers Association (Dkt. No. 14-915), will offer their best arguments as to whether public-sector agency shop arrangements should be outlawed. Public-sector agency shops. In Friedrichs, the parties and the Justices will address the contentious question of whether state employees may be compelled to pay so-called “fair share” fees to public-sector unions—a question that is a matter of survival for public-sector unions. Many labor and employment practitioners expected the Justices to take on the issue in the wake of its Harris v. Quinn ruling a year ago, which questioned precedent in Abood v. Detroit Board of Education permitting such agency shop arrangements. The Court now has an opportunity to squarely re-examine that precedent. The plaintiffs sued the teachers union, asserting that the state’s agency shop arrangement and opt-out procedures for non-chargeable union expenditures violate their free speech and association rights under the First and Fourteenth Amendments to the U.S. Constitution. The case directly implicates Abood, so much so that a district court in California entered judgment on the pleadings in favor of the CTA and the Ninth Circuit summarily affirmed. The parties will offer argument on the questions of whether:
  • Abood should be overruled and public-sector agency shop arrangements invalidated on First Amendment grounds.
  • It is a First Amendment violation to require public employees to affirmatively object to subsidizing non-chargeable speech by public-sector unions rather than requiring them to affirmatively consent to such speech.

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