The New York Agency Shop Fee and the Constitution after Ellis and Hudson

Briffault, Richard

In its recent Ellis and Hudson decisions, the Supreme Court imposed new substantive restrictions and procedural requirements on states that authorize, and public employee unions that utilize, agency shop fees. Focusing on New York State, this study analyzes the consequences for the collection and expenditure of agency fees of the Supreme Court's new emphasis on the First Amendment basis for dissenting employees' rights. The author finds that Ellis and Hudson cast doubt on the constitutionality of some current agency fee practices. He concludes that New York's Public Employment Relations Board will have to take a more active role in policing agency fee standards and procedures than it has until now if the agency fee in New York is to withstand First Amendment scrutiny.

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September 16, 2016