The U.S. Supreme Court, in Harris v. Quinn decided on June 30, 2014, declined the opportunity to overhaul the structure of public sector “fair share” fees that applies in most public sector labor contracts today. That structure was created in the Court’s 1977 Abood v. Detroit Board of Education case, which found that public sector labor contracts can require non-union members to pay agency fees without violating the Constitution’s First Amendment, but the unions must provide a mechanism to opt out of that portion of the fees that would go toward political activities.

The Harris case concerned the union dues in a collective bargaining agreement between the State of Illinois and the Service Employees International Union covering home health care workers paid with Medicaid dollars. The Court majority decided the home health care workers were not “full-fledged public employees” because they are almost entirely answerable to the disabled customers they serve, not to the State of Illinois which pays them. Each disabled customer has a service plan which controls such ordinary collective bargaining matters as work days and hours, lunch breaks, holidays, vacations, job duties and termination of employment. The workers are ineligible for many state protections such as whistleblower protection, deferred compensation, state-provided workers compensation coverage, and indemnification for personal liability. As a result, found the Court’s 5-4 majority, Abood does not apply. The home health care workers have a constitutional right not to pay agency fees, but Abood remains good law for other public employment contexts.

While the Court did not overturn Abood, the majority opinion took pains to outline why Abood was poorly reasoned and inconsistent with other First Amendment precedent. In effect, the door is open for future cases seeking to overturn Abood.

At this point, the Harris decision means very little for most public employers. Union dues language found in most public collective bargaining agreements remains constitutional. Still, Harris v. Quinn raises some questions when public employees employed by one public entity perform work for other individuals or entities. Additionally, with the Harris decision, the Supreme Court majority has served notice that in the future the constitutionality of agency fees for all public entities might be reconsidered.