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How has Janus v. AFSCME affected First Amendment rights for public workers five years later?

Today marks the 5th year anniversary of the U.S. Supreme Court’s Janus v. AFSCME ruling, issued on June 27, 2018. AFP wishes Mark Janus and all public sector workers a Happy #Janusversary.

The Court’s decision reaffirmed the free speech rights of all public employees to freely decide whether to join and financially support government unions as part of their federal, state, and local government jobs around the nation.

Five years later, over 1.2 million fewer public employees are members of unions and are no longer forced to give union leaders part of their hard-earned paychecks just to hold education, public safety, and other public jobs.

That is a more than 22% decline in union members, a clear indication that workers are benefitting from being empowered to exercise their constitutional Janus rights.

Why does Janus matter?

AFP volunteers awaiting SCOTUS decision regarding Janus v. AFSCME.

February, 2018, Washington, D.C.: AFP volunteers gather to support Mark Janus while the Supreme Court hears arguments in Janus v. AFSCME.

Janus overruled 1977’s Abood v. Detroit Board of Education, which allowed government workers to only opt-out of a narrow portion of union dues directly linked to political spending while still requiring employees to pay significant union agency fees as a condition of employment.

The Janus majority opinion found that agency-shop agreements also violate the First Amendment rights of nonmembers by forcing them to “subsidize private speech on matters of substantial public concern.”

The Court clarified that “extraction of agency fees from nonconsenting public sector employees violates the First Amendment,” and that “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.”

While 26 states are Right to Work states and allow government and private sector workers the choice to join or pay a union, the Janus ruling expanded these rights to all government workers that previously could be fired for not paying dues or fees to a union.

Now, federal, state, and local governments have a constitutional duty to protect the choice of their workers. This includes more than recognizing the freedom to opt out of union payments. Every worker deserves to be educated about their rights, the ability to exercise those rights without restriction, and the requirement of consent to ensure they are a willing contributor to the union.

How is Janus being applied on the state level?

AFP Vice President Akash Chougule address AFP volunteers gathered at the Supreme Court to support Mark Janus in Janus v. AFSCME.

February 2018, Washington, D.C. : AFP Vice President Akash Chougule address volunteers gathered to support Mark Janus while the Supreme Court heard arguments in Janus v. AFSCME.

Even though public employees are now guaranteed the constitutional right of freedom of association to voluntarily support, or refrain from supporting, a union at their workplace, many states should do more to help workers fully realize their rights. Some states have even taken action to undermine Janus Rights.

Just over a year after the Janus ruling, New Mexico banned employees from leaving their union outside of a maximum 10 day window each year, while also preventing workers from ending government union dues deductions from their paychecks. Only union leadership is permitted to handle that activity. Other states have followed suit with many allowing union bargaining contracts to circumvent worker rights.

Furthermore, a number of courts have refrained from fully backing Janus rights in evaluating new government laws and actions.

In May 2023, the Alaska Supreme Court rejected actions by Governor Mike Dunleavy to require public employee consent before union dues were taken from their paychecks — a ruling that may be petitioned to the U.S. Supreme Court.

Thankfully, other states are taking steps to protect workers’ rights, including:

  • Michigan’s Civil Service Commission enacted a rule in 2020 to enforce Janus rights.
  • Indiana enacted a Janus rights law in 2021 that was further bolstered in 2022.
  • In 2023, Florida enacted major public sector reforms that, among other things, ensures public employees fully consent to union membership and dues before unions attempt to charge them for part of their paychecks.
Volunteers gather outside the Supreme Court in support of Mark Janus and Janus v. AFSCME.

February, 2018, Washington, D.C.: A crowd gathers in support of Mark Janus as the Supreme Court hears arguments in Janus v. AFSCME.

As Americans for Prosperity and workers around the nation celebrate the fifth #Janusversary, we ask leaders to ensure that their governments fully honor the rights of employee choice when it comes to union representation.