Janus Aftermath: Are State Complying with the Supreme Court?

Jul 27, 2018 by Akash Chougule

Last month, the US Supreme Court ruled in Janus v. AFSCME that public sector collective bargaining amounts to political speech, so no public employee can be forced to fund it against their will – and that union dues cannot be deducted from their paychecks unless they have demonstrated affirmative consent for their employer to do so. This ruling affected almost every state in the country, but their compliance has varied widely – and unfortunately, one month after the ruling, there remain several states in blatant violation of the Supreme Court and the First Amendment rights of public employees.

Making all public-sector union dues and fees optional granted right-to-work protection to government workers nationwide, functionally impacting more than five million people in the 22 states that had not yet passed a right-to-work law of their own. However, even in many states that had previously passed right-to-work, the process to end union dues deduction could be cumbersome; some states placed arbitrary limitations on when workers could do so, did a poor job of informing them that the right exists or how to exercise it, and made it such that they must endure the process every year rather than only once to end dues permanently.

In determining that public-sector collective bargaining is political, the Supreme Court recognized that these opt-out requirements turn the First Amendment on its head; no worker should have to endure a lengthy and confusing process every year just to keep from having their First Amendment right violated.

Thus, the Court ruled that public employers cannot deduct union dues from workers’ paychecks unless the worker has demonstrated affirmative consent to do so – thereby putting the onus on the union to collect dues, rather than on the worker to end dues deduction if they do not wish to pay.

This second part of the ruling was most important in the 22 non-right-to-work states affected by the ruling, because in those states workers who did not wish to join the union were still being forced to pay hundreds of dollars a year in “agency fees” to fund the cost of collective bargaining.

Since then, just half of the 22 states – California, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, Pennsylvania, and Washington – have stopped collecting agency fees from public employees who want out of the union.

The rest are in clear violation of the Supreme Court, and are subject to lawsuits from any employee whose public employer does not end agency fee deduction. Chief among these is New Jersey, which is not only still collecting agency fees from public employees who do not wish to pay the union, but also passed a law earlier this year limiting to just ten days the window in which workers can opt out – a completely arbitrary restriction on workers’ First Amendment right, the likes of which had already been struck down by the Michigan Supreme Court prior to the Janus ruling.

Upon the Janus ruling, every state – including right-to-work states – were likely authorized to end automatic dues deduction for every public employee immediately, including both workers who do wish to belong to the union and those who do not – since almost certainly none of them previously demonstrated the affirmative consent the Supreme Court now requires.

Unions may argue that full union members are presumed to have given consent, but the Court ruled that consent must be “shown by clear and compelling evidence” – not presumption. If any state deems that has not previously been done, they could end all union dues and fees for every public worker and not restart them until such clear and compelling consent has been demonstrated.

To do so would be the fullest extent of compliance with the Supreme Court ruling. But at the very least, states must end agency fee collection from workers who want out of the union – lest they be subject to a lawsuit from employees who do not wish to pay their union any longer, as the highest court in the land ruled they are free to choose.