Can I Legally Opt-Out or Refuse To Pay Union Dues?
Understand your employee rights and union requirements
on June 28, 2022
Updated on June 29, 2022
After decades of declining union membership, the Bureau of Labor Statistics’ latest report shows that about 14 million workers in the United States are labor union members.
Many unions strive to improve members’ working conditions, pay, and benefits through collective bargaining agreements.
However, despite the possible benefits of union membership, some employees prefer not to join or pay union fees. If this describes you, you may be wondering if it’s legal to refuse to join a union or pay dues.
For union membership, the answer is that workers can opt-out at any time.
For paying dues, the answer is that it’s legal to opt out or at least to pay a reduced amount in many circumstances. A couple of factors that determine this are:
- Where you live
- The reason why you don’t want to pay dues
This article will help you understand the law regarding union membership and paying dues. If you have questions about your rights as an employee or think legal action may be needed, consider contacting a wage and hour lawyer as soon as possible. Experienced attorneys can help you understand your state’s employment laws, assess your situation, and bring any claims in a timely fashion.
Joining a Union or Paying Union Dues
When it comes to union requirements, there are two distinct questions. In order to be employed or keep a job, do employees have to:
- Join a union?
- Pay union dues?
“Workers can, at any time, resign from their membership in a union,” says Mathew Shechter, an employment and labor law attorney in Denver. “No one has to be a member of a union. Whether or not you have to pay dues to a union is a separate question, and that question is governed in part by state law.”
Let’s look at these issues in turn.
Joining a Union
The National Labor Relations Act (NLRA) is a federal law that, among other things, guarantees the right of employees to form labor unions and engage in collective bargaining.
Notably, the NLRA guarantees workers’ right to unionize but does not force employees to join a union. Workers have the right to:
- Refuse to join a union
- Resign from a union at any time, including during a strike (the U.S. Supreme Court made this decision in a case called Pattern Makers League v. NLRB)
Some collective bargaining agreements require employers to only hire union members for specific jobs. Still, as a general matter, you cannot be forced to join a union to get or keep a job.
So, employees can’t be required to join a union. What about paying dues?
In some cases, contracts known as union security agreements require employees who opt out of union membership to still pay dues.
The rationale behind security agreements is that unions must represent all employees, whether they’re union members or not. If only members paid fees, many employees might choose not to join and get the benefits of union representation without paying their fair share. This could put a significant strain on the unions’ resources.
A solution to this problem is to require non-members to pay agency fees that help cover the cost of union activities. This is what union security agreements do.
The NLRA allows union security agreements between unions and employers. At the same time, the NLRA also allows states to prohibit security agreements. “Section 14b of the NLRA provides that states are free to pass laws that forbid union security clauses, or at least their enforcement,” Shechter says.
Twenty-seven states have prohibited union security agreements through “right to work” laws. These laws prohibit unions from requiring non-members to pay dues. So, if you live in a right to work state, you cannot be required to pay fees to a union as a condition of employment.
Paying Dues in States Without “Right to Work” Laws
Suppose you work for a company with a union in a state that doesn’t prohibit union security contracts. In that case, you may be required to pay union fees even if you are not a member.
However, even if you are required to pay fees, you may be able to object to some fees and lower the amount.
“Generally, for private-sector employees in states where union security clauses are enforceable, workers have three options,” Shechter says. “One, they can pay regular dues and be a full member; two, they can pay an agency fee, which is typically the same amount as full dues, but doesn’t give the rights and benefits of membership; or three, they can be a reduced-fee payer, which deducts non-representational expenses such as political or charitable activities.”
Why might someone not want to pay certain union dues?
One reason could be for political purposes. In addition to collective bargaining to improve pay or working conditions, unions may also support political causes that some employees don’t want to back.
In a case called Communication Workers v. Beck, the U.S. Supreme Court ruled that unions cannot require employees to pay dues for activities that are:
- Unrelated to collective bargaining
- And that the employees object to
The Court said requiring employees to pay dues despite their objections would violate employees’ First Amendment rights to freedom of speech and association.
In addition to free speech concerns, employees may object to paying dues because of their sincerely held religious beliefs.
Title VII of the Civil Rights Act prohibits employers from discriminating against individuals because of religion in hiring, firing, and other conditions of employment. Employers must also reasonably accommodate employees’ religious practices.
If an employee objects to the use of union dues on religious grounds, they can’t be forced to pay. Many states allow employees to give to a charitable organization of their choice instead of paying the union dues.
How to Opt Out
If you decide to opt out of certain dues, how do you do it?
“Generally, employers are required to notify their employees of their right to resign,” Shechter says. “Often there will be instructions on exactly how to do it, but, generally, workers can do so in any format that puts the union on notice of the member’s intention to resign and election of one of the [dues-paying] options.”
So far, we have looked at union requirements for private-sector employees. What about individuals who work for public employers, such as state governments?
In a 2018 Supreme Court ruling called Janus v. AFSCME, the court said that requiring public-sector union non-members to pay union fees violated the First Amendment.
Before the Janus decision, government employees in some states were required to pay fees to help cover collective bargaining costs even if they were not members of the union. The situation was like private-sector employees in states with enforceable union security contracts.
After the Janus ruling, public-sector unions cannot require government workers to pay any fee unless the employee voluntarily opts in. “Public sector employees are not required to pay any amount,” Shechter says, summarizing the ruling. “They can be what’s known as a free rider, meaning they enjoy the benefits of being protected under a union collective bargaining agreement, but they get to do so for free.”
This free rider problem is “a significant economic strain on unions,” Shechter adds. “Ultimately, at the end of the day, unions still have to negotiate a collective bargaining agreement, still have to file and process grievances, and in most cases have to arbitrate or take matters to hearings—but it’s not getting any income from that individual.”
To Join or Not Join
“The one thing employees want to consider when they’re thinking about whether to unionize their workplace is the true benefits of membership in those unions,” Shechter says.
“In the private sector, virtually the only place where you enjoy protection from arbitrary termination of employment is in unionized workplaces. That’s a very valuable, but often overlooked, benefit. Most people say, ‘I’m not going to get fired; it’s not going to be me.’ But in an at-will employment setting, someone can be terminated for any reason or no reason at all. So the benefit that unions afford, often in addition to better pay and benefits, is protection from arbitrary termination.”
Questions for an Attorney
If an employer or union has told you that you must join or pay dues to a union, you may be wondering about your employee rights and options. An attorney practicing employment or wage and hour law can help you strategize about the best course of action.
Fortunately, many attorneys provide free initial consultations to prospective clients. These free consultations allow the attorney to hear the facts of your case and for you to determine if the attorney meets your needs.
To see whether an attorney is a good fit, ask informed questions such as:
- What are your attorney fees, and what billing options do you offer?
- What is your experience as a wage and hour attorney?
- What are my state’s laws regarding union dues?
- What is my best course of action to deal with my issue?
Finding the Right Attorney for Your Needs
It is essential to approach the right type of attorney—someone who can give you legal help through your entire case. You can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.
If you are dealing with union dues issues, consider looking for a wage and hour attorney.