Overcoming the Free Rider Problem

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

Harris v. Quinn raises the question of whether unions will be able to collect dues from workers who are under no obligation to pay them.  Because unions have to provide representation even to workers who decline to pay dues, Harris presents a classic free rider problem for unions.  Is this an insurmountable problem?  I’ve argued that it needn’t be, and today there is some preliminary evidence that it is not.  As the Wall Street Journal reports, AFSCME has been engaged in an internal organizing effort to convert agency fee payers to full-fledged (no pun intended) members.  That is, the union is trying to increase the number of workers who voluntarily pay full union membership dues.  The union’s goal for July 1 was to convert 50,000 workers to full membership.  Not only has the union reached that goal, it has added 92,000 union-represented workers to the membership rolls this year.  And, most important in light of Harris v. Quinn, 21,000 of these new members are home care workers.

This should not, of course, be taken as evidence that the free rider problem that Harris creates (and that a reversal of Abood would create more broadly) is irrelevant or easily over-comable.  It is neither of those things.  But the AFSCME numbers are good evidence that unions may be able to adjust to the loss of agency fee, and that Harris v. Quinn may not be a fatal blow.

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