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Full-Text Articles in Law
Compelled Unionism In The Private Sector After Janus: Why Unions Should Not Profit From Dissenting Employees, Giovanna Bonafede
Compelled Unionism In The Private Sector After Janus: Why Unions Should Not Profit From Dissenting Employees, Giovanna Bonafede
Catholic University Law Review
This Note examines the impact of the 2018 landmark labor law case Janus v. AFSCME. Janus held it unconstitutional under the First Amendment to require public sector employees to pay fees to a union to which they are not a member. The Supreme Court based their decision on the idea that compelling public employees to subsidize union speech to which they disagreed violated their free speech rights. The author argues that the Court’s holding in Janus should be extended to protect the free speech rights of private sector employees through a finding of state action in the private unionized …
The Other Janus And The Future Of Labor’S Capital, David H. Webber
The Other Janus And The Future Of Labor’S Capital, David H. Webber
Faculty Scholarship
Two forms of labor’s capital—union funds and public pension funds—have profoundly reshaped the corporate world. They have successfully advocated for shareholder empowerment initiatives like proxy access, declassified boards, majority voting, say on pay, private fund registration, and the CEO-to-worker pay ratio. They have also served as lead plaintiffs in forty percent of federal securities fraud and Delaware deal class actions. Today, much-discussed reforms like revised shareholder proposal rules and mandatory arbitration threaten two of the main channels by which these shareholders have exercised power. But labor’s capital faces its greatest, even existential, threats from outside corporate law. This Essay addresses …
Janus, Union Member Speech, And The Public Employee Speech Doctrine, M. Linton Wright
Janus, Union Member Speech, And The Public Employee Speech Doctrine, M. Linton Wright
Pace Law Review
In Janus v. American Federation of State, County, and Municipal Employees (“AFSCME”), the Supreme Court held that public sector unions can no longer collect fees from nonmembers to fund the costs of representing them in collective bargaining and grievance proceedings. The Court determined that virtually all union speech is political speech and that collection of these fees is impermissible compelled speech under the First Amendment. However, not everything in Janus harms public union interests. The Janus Court’s discussion of Garcetti v. Cabellos and Connick v. Myers actually helps protect union member speech in the context of First Amendment retaliation cases. …
Redefining Workplace Speech After Janus, Theo A. Lesczynski
Redefining Workplace Speech After Janus, Theo A. Lesczynski
Northwestern University Law Review
We have a First Amendment right to criticize the government. But this freedom does not translate into a right to criticize one’s boss even if, as for millions of Americans, one’s boss happens to be a government employer. Public employee speech doctrine has long established wide latitude for public employers to supervise their workers. Employees must show at the threshold that their speech was on a matter of public concern and not an internal workplace matter. The Supreme Court’s pronouncements over the last decade in a related doctrinal area, however, have unsettled the line demarcating workplace speech. In its agency …
A Common-Sense Defense Of Janus: Forthcoming Changes In The Public Sector, Maria O'Brien
A Common-Sense Defense Of Janus: Forthcoming Changes In The Public Sector, Maria O'Brien
Faculty Scholarship
Many scholars and others have, for some time now, been calling attention to the alarming growth in post-employment and other benefits for unionized employees in the public sector. 17 A fairly well-understood phenomenon is thought to explain the inability of state and local governments to resist outsized demands from their public unions. As 18 Is and others 19 have argued, the central problem with public sector unions is that they find it easy to capture their employers (taxpayers) in ways that private sector unions cannot. The role played by often eager and feckless elected officials in this process has also …
Total Eclipse Of The Court: Janus V. Afscme, Council 31 In Historical, Legal, And Public Policy Contexts, Sarah W. Cudahy, William A. Herbert, John F. Wirenius
Total Eclipse Of The Court: Janus V. Afscme, Council 31 In Historical, Legal, And Public Policy Contexts, Sarah W. Cudahy, William A. Herbert, John F. Wirenius
Hofstra Labor & Employment Law Journal
The article examines the historical rise and institutionalization of the agency shop in public sector labor relations and its sudden fall in the Supreme Court’s Janus v. AFSCME, Council 31 decision. The authors demonstrate that the rapid rise of public sector unionism took place during a period when most state laws did not require or even permit the agency shop. We also explore the history of the agency shop in New York including the leading role New York City government played in advocating in Albany for legal changes to permit the agency shop to be negotiated. The article then describes …
Reconciling Agency Fee Doctrine, The First Amendment, And The Modern Public Sector Union, Courtlyn G. Roser-Jones
Reconciling Agency Fee Doctrine, The First Amendment, And The Modern Public Sector Union, Courtlyn G. Roser-Jones
Northwestern University Law Review
Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay “fair share” or “agency” fees. In public unions—when the employer is the government—this arrangement creates tension between two important values: the First Amendment’s protection against compelled expression and the collective benefits of worker representation. When confronted with this tension forty years ago in Abood v. Detroit Board of Education, the Supreme Court struck an …