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Post-'Janus', Unions Continue Undermining Public Workers' First Amendment Rights

It has been nearly one year since the U.S. Supreme Court restored the First Amendment rights of public employees, but many members are still having difficulties exercising these new rights. In the landmark Janus v. AFSCME decision, public employees who are not members of a union can no longer be forced to pay agency fees, better known as forced union dues, as a condition of employment.

In the aftermath of the decision, government unions were unable to convince many non-members to become full-fledged members and pay dues. As I discussed in a previous post, union financial reports submitted to the Department of Labor show the National Education Association lost the 88,000 non-member agency fee payers it had in 2017. And the Americans Federation of State, County, and Municipal Employees union lost 110,000 agency fee payers. The financial reporting of another large public-sector union, the American Federation of Teachers, does not reflect the impact of Janus because its reporting period ended in the same month as the decision. However, a new report from the Freedom Foundation states that “union spokespeople indicate the union lost nearly all 85,000 agency fee-payers it had at the time of the decision.”

As seen, in the post-Janus landscape, non-members have been able to, generally, easily stop making payments to labor unions. But government unions across the country have blocked or forced union members to jump through burdensome hoops in order to leave their union and end dues payments.

Prior to the Janus decision, workers who wished to opt-out of union membership were restricted by what are known as window periods. For example, in Michigan, many public employees could only leave their union once a year during a short period of time in August. Other window periods only permitted members to leave the union for a brief time period around the anniversary of their hiring.

Despite the text of the decision that allows workers to resign union membership nearly at any time, labor unions are still blocking workers who want to leave by enforcing these invalid window periods. In a recent case, Hendrickson v. AFSCME, New Mexico public employee Brett Hendrickson, represented by the Liberty Justice Center, was prohibited from exercising his Janus rights to resign from union membership. Hendrickson, a quality control specialist for the New Mexico Human Services Department, attempted to leave AFSCME Council 18 and stop dues from being deducted from his paycheck, but was told he could only opt-out during a narrow window period. This is just one of many examples of unions coercing worker to continue paying dues and undermining their First amendment rights (see here, here, and here for more instances of unions blocking members from leaving the union).

Enforcing opt-out windows runs contrary to the Janus decision. Not only did the Supreme Court decision outlaw forced union dues, but it also requires an employee to provide affirmative consent that they want to pay union dues, whereby they are knowingly waive their First Amendment rights. The Janus decision states:   

Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather to be effective, the waiver must be freely given and shown by clear and compelling evidence. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.

This passage from the decision is key to Janus rights. A union may only take dues from a worker who affirmatively consents and voluntarily and knowingly waives their First Amendment right to not financially support a union. As such, any union member who authorized dues payments prior to the Janus decision must sign a new dues deduction form, which explains they are under no obligation to subsidize the union and that, by signing the card, they are waiving their First Amendment rights. Otherwise, a government employer cannot siphon dues from their paycheck.

However, more often than not, labor unions are not alerting workers to their new rights under Janus and government employers continue to deduct dues from members who have not knowingly waived their First Amendment rights. And to make matters worse, unions then refuse to honor public employees’ wishes when they attempt to revoke their membership and end dues payments.  

But this should not come as a surprise. Government unions have long used suspect tactics to organize workers and held coercive powers to force workers to pay them or risk termination. And, predictably, they have been slow to adapt to new conditions that have weakened their authority over the workers they represent.

Fortunately, public interest law firms across the country are assisting workers so that they may fully exercise their Janus rights. Hopefully by the time the second anniversary of the decision comes around, unions will have begun to recognize workers’ rights and no longer use illegitimate tactics to retain membership.