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Second Circuit Joins Sister Circuits In Upholding Constitutionality of Union Dues Authorizations

A quick one today, but an important one. In Janus v. AFSCME, 138 S.Ct. 2448 (2018), the Supreme Court overruled decades of settled precedent and invalidated dozens of state laws requiring public-sector employees to pay agency fees, also called "fair share fees," to the unions representing them. Union members voluntarily pay dues to the union, of course. But the union has a duty to fairly represent all employees in the unit, whether they are members or not, and fair share fees ensured that nonmembers did not "free ride" by taking all the benefits of union representation at none of the cost. The Supreme Court, in a bitterly polarized 5-4 decision, banned fair share fees, reasoning that money is speech and the government cannot compel nonmembers to "speak" in favor of the union.

Post-Janus, many employees sought to exercise their newly discovered right to free-ride by resigning from the union. But many discovered that, when they had joined the union, they had signed cards which authorized their employers to deduct dues from their wages – whether or not they were union members. These cards often provided that they could be revoked only during annual "window periods." A number of those employees sued, believing that Janus gave them the right to stop paying right away – no matter what they had voluntarily agreed to. Those employees were often represented (and bankrolled) by ideologically driven, right-wing anti-union groups like the National Right to Work Legal Defense Foundation and the Fairness Center.

But court after court rejected those groups' arguments. It's one thing, the courts said, to force someone to pay fair share fees that they never agreed to pay; Janus banned that. But Janus didn't stop the enforcement of ordinary contract law – in other words, if you agree to pay fair share fees, you have to do it like you said you would.

Today, the Second Circuit joined the growing chorus of appellate courts to place this important limit on Janus when it decided Wheatley v. NYSUT, handing the Fairness Center a major defeat. It explained that:

The dangers of compelled speech that were the concern of the Court in Janus are not at issue here. New York’s Taylor Law guarantees public employees the right to choose whether to join the union as members, N.Y. Civ. Serv. Law § 202, and prohibits any union or public employer from “interfer[ing] with, restrain[ing] or coerc[ing] public employees in the exercise of their rights,” id. at § 209-a. It is undisputed that Appellant voluntarily joined the Unions and authorized dues deductions from her wages when she signed the Membership Agreement in 2018, which began with the statement “YES! I request and accept membership in [the NHEU and] . . . NYSUT.” J. App’x at 27. Having the choice to voluntarily join and resign from a union is the opposite of compelled speech. See Belgau [v. Insley], 975 F.3d [940] at 951 [(9th Cir. 2020)].

The Second Circuit's opinion was only 13 pages – on the short end of the spectrum – which indicates it didn't think the issue was particularly difficult. In a footnote, it cited appellate cases from six other Circuits (the Third, Sixth, Seventh, Eighth, Ninth, and Tenth) reaching essentially the same conclusion. This represents a growing consensus that Janus, while clearly an anti-union decision, is not a license for anti-unionists to ignore generally applicable legal principles in their effort to undermine organizing.

Burdick Law PLLC is proud to be pro-employee and pro-union. We believe that the best way for employees to improve their pay and working conditions is to organize together with their coworkers in order to stand up to management. Burdick Law PLLC does not represent individual employees who are seeking to decertify a union. We can assist employees who are seeking to form a union as well as established unions seeking to negotiate contracts, process grievances and file unfair labor practice or improper practice charges. If you need legal assistance in any of these kinds of matters, contact Burdick Law PLLC today.


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