September 3, 2019
By Jacob Huebert
Last year, the U.S. Supreme Court’s Janus v. AFSCME decision restored the First Amendment rights of millions of government employees—or at least it should have. So far no state has actually done everything Janus requires to ensure that all workers’ rights are respected. Fortunately, Alaska Attorney General Kevin G. Clarkson last week issued a memo advising Alaska’s governor on how the state can fully comply with the law. Other states should heed his advice, too.
Janus declared that the First Amendment forbids governments from forcing their employees to pay union fees. The Court also said that the government can’t deduct union dues or fees from an employee’s paycheck unless it has “‘clear and compelling’ evidence” that the employee has “affirmatively consent[ed]” to pay and has “freely given” a waiver of his or her right not to pay. That’s because the government may never simply presume that someone has chosen to waive First Amendment rights.
As a result of Janus, virtually all state and local governments that previously forced people who weren’t union members to pay union fees stopped doing so. But they continued to take union dues from the paychecks of employees who were listed as union members in government records.
At first glance, that might seem to be what Janus called for: Union members pay dues, nonmembers don’t. But a closer look shows that it’s not enough.
Before Janus, the 22 states with mandatory government union fees forced employees to choose to either pay full union dues or pay an “agency fee” that typically was slightly less than full union dues. The employees didn’t have the third option to which they were entitled under the First Amendment: to pay a union nothing at all.
Faced with that unconstitutional choice, it’s understandable that many employees who didn’t want to support a union nonetheless signed union membership agreements and paid full dues. After all, declining to join wouldn’t have saved them much money, wouldn’t have prevented them from paying for a lot of union political advocacy, and could have subjected them to being hassled by pro-union coworkers.
Because workers didn’t have a choice as to whether to give a union their money, any “consent” to pay dues that they gave before Janus wasn’t “freely given” as the First Amendment requires. And there’s another problem: Before Janus, governments often didn’t have “clear and compelling” evidence that employees had consented to pay before deducting union dues from their checks, as Janus requires. They just took the union’s word for it that a given employee was a member.
Of course, there surely were workers who really did want to be union members and would have joined even if they’d had the option to pay nothing. But governments have no way to know which workers’ pre-Janus union membership reflected a genuine desire to join and which workers’ “consent” was coerced.
What to do about this problem? The Alaska AG’s memo has the right answer: Stop taking union dues from all employees except those who have clearly expressed their affirmative consent to pay—and knowingly waived their First Amendment right not to pay—after Janus was decided.
To accomplish this, Clarkson recommends that Alaska “implement and maintain an online system and new written consent forms through which employees wishing to authorize payroll deductions for union dues and fees may provide consent.” That process—under which unions will not “control the conditions in which the employee provides consent to a payroll deduction” for union dues, as they still do in many states—will ensure that workers’ waivers of their First Amendment rights “are knowing, intelligent, and voluntary” as required.
Clarkson also advises Alaska to establish an annual “opt-in” period during which workers could choose whether to authorize future union dues deductions. He suggests employees could make that decision at the same time that they make other payroll-related decisions such as benefits elections.
That’s the opposite of what happens in many states, where workers who join a government union continue to have dues taken from their paychecks indefinitely unless they opt out during a little-publicized annual window—imposed by a union membership agreement, a collective bargaining agreement, or state law—that may vary from worker to worker and commonly is as short as two weeks. Many workers no doubt overlook their opt-out window—if they know about it at all—and continue to pay dues even after they no longer want to support a union. Which is, of course, why unions and their friends in government favor opt-out schemes: They tend to keep a worker’s money flowing to a union regardless of whether the worker actually wants to be a member.
The proposed Alaska procedure, on the other hand, wouldn’t favor union membership or non-membership. It would just ensure that the state’s deduction or non-deduction of union dues from someone’s paycheck reflects the employee’s actual desires by regularly asking the employee what he or she wants.
Alaska Governor Mike Dunleavy should accept the Attorney General’s recommendation and make his state a national leader in respecting workers’ First Amendment rights. Then other states should follow Alaska’s lead so that Janus’s promise—that all government employees will have the freedom to choose what groups they will and won’t support with their money—is finally fulfilled.
Jacob Huebert is a senior attorney at the Goldwater Institute. He was a member of the legal team that successfully litigated the Janus v. AFSCME case.