State Legislatures Seek to Undermine ‘Janus’ Decision


Labor unions continue to deny the First Amendment rights of public employees despite the Supreme Court’s landmark decision in Janus v. AFSCME, which ruled one year ago that non-union workers cannot be compelled to pay union fees as a condition of employment. Many public employees that want to drop their membership have found it can be exceedingly difficult to do so. There have been numerous instances of labor unions enforcing invalid windows periods that prohibit workers from revoking their membership outside of a narrow period of time that only comes around once per year or less.

But labor unions are not the only obstacle for workers who may want to exercise their Janus rights and end union payments. Like most Americans, a majority of public employees do not eagerly await Supreme Court decisions or take the time to read and analyze them. As such, likely the greatest impediment to workers who would like to leave their union is a lack of knowledge.  

A survey conducted by finds 77 percent of teachers have not even heard of Janus v. AFSCME before taking the survey. Similarly, a vast majority (82 percent) of teachers were not contacted by anyone—union, employer, or other organization—about the results of the Janus decision and their new options about their union membership. At least one state, Pennsylvania, is seeking the close the knowledge gap by passing legislation to inform all public workers that union membership is voluntary and they can opt-out of dues payments without repercussions.

Possibly more troublesome than the lack of education on the Janus decision among public employees is that state legislatures have enacted, or are seeking to enact, legislation that keeps workers in the dark about their Janus rights, jeopardizes worker privacy, and leaves workers open to union intimidation tactics.

In California, Washington, and New Jersey, legislation was enacted that severely curtails public employers’ ability to communicate with employees about the Janus decision. For example, the California law states, a public employer “shall not deter or discourage public employees from becoming or remaining members of an employee organization.” This could be construed to limit employers from educating workers about their new rights to stop paying union dues. In New Jersey, public employers have little incentive to test the limits of this type of law. Any New Jersey public employer who violates this provision will be required to reimburse the union for any loss of dues.

A bill making its way through the Massachusetts legislature includes several provisions that seek to blunt the impact of the Janus decision on union finances. The bill would achieve this goal in two ways: charge non-members for representation during grievances and ease union organizing.

As I wrote in a letter to the editor in response to a Boston Globe editorial on the bill, charging non-members for union services is not the best solution to solve the purported free-rider problem. Unions argue that since they represent the all workers in a bargaining unit—members and non-members—non-members should be compelled to pay for the services the union provides. But there is a gaping hole in this argument: exclusive representation.

A near universal provision in U.S. labor law is the concept of exclusive representation, which grants unions monopoly status to represent and negotiate on behalf of all the employees at a workplace, including non-members. Under exclusive representation, non-members have no choice but to work under a union contract or accept union representation.

There is an equitable way, however, to reform labor law to ease union concerns over providing non-members with services without charge. Massachusetts, and other state legislatures, should consider legislation that makes a clean break between the union and non-members. Non-members should be free to negotiate directly with their employer and find their own representation during grievance procedures. This way, unions only provide services to workers who are full-fledged dues paying members.

Another provision in the Massachusetts bill, which has been enacted in several states—Maryland, New Jersey, and Washington—provides unions with public employees’ private information like cell phone number and email address, along with their home address. Worse, the bill fails to provide workers with the option to opt-out of sharing their private information.

This represents a clear invasion of privacy, and it is easy to imagine a scenario where this private information is sold to third parties or could lead to harassment and intimidation of workers by union organizers. In fact, the National Labor Relations Board noted that distributing workers’ private information to unions could lead to these exact kinds of problems in a guidance document. Further, why should a union have access to workers’ private information who may want nothing to do with the union? If a worker wants to share their email address or phone number with a union organizer they can easily do so without it being required by law.

Another common reform making the rounds in state legislatures to boost union organizing efforts is to require new hires attend union captive audience meetings, so unions can make the case for union membership. In an op-ed for the Washington Post last year, I discussed a Maryland bill intended to undermine the Janus decision and how union “captive audience” meetings have proved problematic:

In Washington state, public records obtained by the Freedom Foundation reveal that union organizers for the Service Employees International Union used tactics that were “aggressive,” “rude” and “coercive.” The workers who attended the orientation felt “pressured,” “misled,” “tricked,” “coerced,” “intimidated” and “forced” to sign up with the union. Unions should be able to make their pitch to workers, but it should be the worker’s choice to hear the union out, not a job requirement.

These are just a few of the many reforms union-friendly legislators have sought to pass to undermine the Janus decision. It is unfortunate that elected officials and unions have doubled-down on seeking to force unions on workers. Janus presented an opportunity for unions to look inward, survey membership, and provide services to workers that they want and would pay for voluntarily.