October 8, 2019
By Jon Riches
Imagine if your employer told you that in order to keep your job you must pay for your co-workers not to work for your organization, but instead to work for a private entity to advance that entity’s politically driven mission. That is precisely what is happening in the City of Phoenix and throughout the entire country, through a practice called “release time.” And through a new lawsuit filed today, the Goldwater Institute is fighting back against this practice in our home state.
Under release time, government employees are “released” from the jobs they were hired to perform to work exclusively for government unions—all while receiving funding from other government employees, including those who don’t belong to the union. While on release time, government workers are paid to increase union membership, engage in political activities, lobby the government, file grievances against their employer, and negotiate for higher wages and benefits, among other things. In other words, release time employees are not paid to perform the jobs they were hired to perform, but rather to engage in policy and political activities, in many cases full-time.
In Phoenix, release time is funded as part of “total compensation” in collective bargaining agreements that bind all city workers subject to those agreements, whether they belong to the union or not. In other words, every government employee is required to direct part of his or her compensation to finance release time even when they don’t belong to the union or want to participate in any way with union activities. Today, the Goldwater Institute has filed a lawsuit on behalf of two City of Phoenix employees who don’t wish to have any of their compensation directed toward union activities, including release time. (Read more about the case, Gilmore v. Gallego, here.)
Government unions used to compel other employees to pay for their activities by convincing lawmakers to require every government worker to pay “agency fees” to the union, whether the employee belonged to the union or not. But in a landmark U.S. Supreme Court decision last term, Janus v. AFSCME, the Court found thatthe First Amendment is violated when a government employer takes money from nonconsenting employees to support a public-sector labor union.
Now that unions are prohibited from collecting agency fees, they are doubling down on release time so that they can continue to engage in union activities on other people’s dime.
But the Court’s holding in Janus is clear: “[n]either an agency fee nor any other payment may be deducted from a nonmember’s wages…unless the employee affirmative consents to pay.” In other words, just like agency fees, release time violates the First Amendment rights of other workers who don’t want to fund union activities.
Release time in the City of Phoenix also violates the Arizona Constitution’s free speech and association provisions, Arizona’s Right to Work laws, and the Arizona Constitution’s Gift Clause. Government workers should not have to choose between keeping their job or being forced to finance union activities. Represented by the Goldwater Institute, two City of Phoenix employees are headed to court to stop the city from forcing them—and many other workers just like them—to make that choice.
Jon Riches is the Director of National Litigation at the Goldwater Institute.