Today marks the one-year anniversary of the U.S. Supreme Court’s ruling on Janus v. the American Federation of State, County and Municipal Employees (AFSCME). The Janus v. AFSCME decision is one of the biggest rulings in favor of the First Amendment in recent history. The ruling defends public workers from compelled speech in support of unions through the deduction of dues and fees from workers’ paychecks.
Prior to Janus, employees who did not wish to join a union were compelled by states and collective bargaining law to pay the union “agency fees.” Agency fees were long seen as a means for workers to compensate unions for their collective bargaining efforts—regardless of whether or not the worker wanted the organization to bargain on their behalf.
Unions had long fought to keep agency fees, often referring to tem as “fair share fees,” and contending that they are necessary to prevent “free riders”—a term for nonmembers that benefit from collective bargaining but don’t pay union dues. Hence why, during arguments before the high court, the union’s defense was that agency fees were not compelled speech and were instead fees for services from which nonmembers benefitted.
The Supreme Court did not agree with organized labor’s characterization of agency fees as non-political speech. In fact, when writing for the majority, Justice Alito explained that union speech is political speech because “it covers critically important and public matters such as the State’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights.” Thus, Justice Alito dismantled AFSCME’s argument that agency fees are not associated with political speech.
The Janus decision makes clear that the deduction of agency fees from workers’ paychecks violates the First Amendment. In fact, the decision goes one step further by stating that, in order for a union to deduct fees or dues of any sort from a union’s paycheck, the public worker must give the organization affirmative consent.
In the year since the monumental Janus decision, many public employees have stopped paying agency fees. Union reports from 2018 show that AFSCME lost 98 percent of its agency payers after the Janus decision while the Service Employees International Union (SEIU) lost 94 percent.
The Supreme Court’s ruling in favor of Mark Janus last June has freed hundreds of thousands of public sector employees from unwanted agency fees. However, the decision has not completely freed workers from union control.
Currently, many states have laws on the books that make government unions “exclusive representatives” of employees within a workplace. Such laws create a representational monopoly where only one union or organization is permitted to negotiate on behalf of the employees within the bargaining unit. In other words, individuals in a unionized workplace who are not members of the union are not allowed to negotiate on their own behalf. This is likely the next step for workplace freedom after Janus; workers who are not members of the union should be permitted to negotiate with their employer separate from the union.
In addition, despite the high court’s ruling that unions need affirmative consent to deduct payments from government workers, some unions continue to do so by preventing members from leaving the union outside of a designated opt-out window written into union contracts. These actions run counter to the affirmative consent threshold outlined in the decision and are the source of several pending lawsuits throughout the nation.
One year after Janus, progress is being made towards allowing employees to work under the conditions they choose. However, much work is still needed to ensure employees are not being forced to associate with entities with which they do not wish to associate. Nevertheless, there are still many public employees who are unaware of what their rights are in the workplace.
If you are a public worker and have questions about the Janus decision, visit www.mypaymysaymaine.org.