Whose Money Is It Anyway: Have We Been Wrong About Agency Fees All Along?
131 Harv. L. Rev. Forum 154 (2018)
12 Pages Posted: 13 Mar 2018 Last revised: 3 Oct 2019
Date Written: March 10, 2018
In Agency Fees and the First Amendment, Professor Benjamin Sachs offers a pair of novel arguments for why the Court should pause before invalidating public sector union agency fee agreements throughout the country.
First, he argues that the money sent to unions to offset their bargaining costs is better viewed as the government employer’s money than as the employees’. Collective bargaining agreements force employees to turn the money over to the union on pain of losing their jobs, after all, and so the workers never have a “genuine choice” whether to make the payment at all. That, Sachs explains, should lead us to “treat agency fees as a direct payment from employer to union.”
Second, Sachs argues that the money might instead be better understood as the union’s all along. But for the wage premium that unions bring about for their workers, the argument goes, the fees that unions receive would not exist — and so the money is properly viewed as the union’s property from the outset.
These arguments are among the best defenses of agency fees that I have seen. Ultimately, however, both arguments are susceptible to counterattack for reasons discussed in Parts I and II herein. In a final concluding part, I express my agreement with Sachs on another point: the twenty-two states that currently permit agency fee agreements in the public sector can undo the impact of an adverse outcome in Janus by authorizing government employers to reimburse unions directly for their bargaining costs. It is this legislative alternative that, in my view, warrants the greatest attention from labor proponents in the coming years.
Keywords: Janus, agency fees, fair share fees, unions, labor, public sector unions, First Amendment, compelled subsidy
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