40 years, Ivan Schraeder has provided collective bargaining, employment law
counsel, and litigation defense for dozens of local governments throughout
Missouri and Illinois, and serves as general counsel for the Missouri
Public Employers' Labor Relations Association. He previously served
as the Missouri Director of Labor Relations, where he was responsible
for all labor relations policies for the state's executive branch.
Mr. Schraeder also teaches labor and employment law for the Missouri
Bar Association, the Missouri Municipal Attorneys' Association, and
the Missouri School Boards' Association, in addition to a variety of
legal organizations, universities, public sector entities, public
employer associations, and police academies in Missouri and Illinois.
Wagner Law Group is a nationally recognized practice in the areas of
ERISA and employee benefits, estate planning, employment, labor and
human resources and investment management.
in 1996, The Wagner Law Group is dedicated to the highest standards
of integrity, excellence and thought leadership and is considered to
be amongst the nation's premier ERISA and employee benefits law
firms. The firm has eight offices across the country, providing
unparalleled legal advice to its clients, including large, small and
nonprofit corporations as well as individuals and government entities
worldwide. The Wagner Law Group's 33 attorneys, senior benefits
consultant and seven paralegals combine many years of experience in
their fields of practice with a variety of backgrounds. Nine of the
attorneys are AV-rated by Martindale-Hubbell
and six are Fellows of the American College of Employee Benefits
Counsel, an invitation-only organization of nationally recognized
employee benefits lawyers. Five of the firm's attorneys have
been named to the prestigious Super
Lawyers list for 2017, which highlights outstanding
lawyers based on a rigorous selection process. The Wagner Law Group
is certified as a woman-owned and operated business by the Women's
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June 29, 2018
What the Supreme Court's
Janus v. AFSCME Council 31
Means for Millions of
Supreme Court recently issued its decision in Janus v. AFSCME
Council 31. This case determined that forced payment of dues or
fees by public employees to their collective bargaining
representative is a violation of the public employees' First
Amendment right to free speech. The impact of this decision is that
NO public employer can legally negotiate a mandatory dues or fees
payment to be taken involuntarily from public employees to be paid to
the bargaining agent as a condition of employment. Only voluntary
acts by employees are permitted if carefully drafted. There are more
principles in this 5 to 4 court decision, but this is the primary
take away. Any public entity that has a mandatory membership or fee
provision in a contract needs to remove such provisions from the
collective bargaining agreements and policies immediately.
This case arose when a public employee in an AFSCME state bargaining
unit did not want to pay an "agency fee" to the union for
collective bargaining representation. Illinois public employee labor
law authorized the fee to be charged as a part of a union contract.
Until this case was decided, Abood v. Detroit Bd. Of Educ,
431 U. S. 209 (1977) was the controlling precedent. The Abood
case allowed for agency fees to be charged without approval by a
public employee when a public employee did not want to be a member of
the union. It was an authorized service fee.
The focus of the Janus was on the mandated payment of moneys
to the union that interfered with the public employee's free speech.
The Court referenced the principle that forced associations that
burden protected speech are impermissible. The Court stated
"compelling a person to subsidize the speech of other private
speakers raises similar First Amendment concerns."
In response to the union's position that the agency fee arrangement
prevents "free riders," the Court stated that
"avoiding free riders is not a compelling interest" that
can override an individual's First Amendment rights.
All public employers need to review their collective bargaining
agreements for the purpose of removing any mandated payments from
being extracted from a public employee's paycheck without the
employee's specific consent. The better means of consent is to have a
public employee periodically sign payroll withholding forms if any
payment it to be withheld. Without such consent, the public employer
is at risk of violating a constitutional right and should not
withhold such payments for the exclusive bargaining agent.
analysis provided by Ivan
Schraeder in this
law alert has already been shared amongst all of Missouri's
municipalities. Please contact Ivan via email
if you have any questions.