This summer, Alaska Attorney General Kevin Clarkson released a formal opinion that said the state is not in compliance with the United States Supreme Court ruling in Janus v. the American Federation of State, County and Municipal Employees (AFSCME). The formal opinion was issued via a request from Alaska Governor Mike Dunleavy to ensure Alaska’s current process for collecting dues from employees’ paychecks is in compliance with the Janus decision.
The Janus ruling established that public sector workers cannot be required to pay dues or fees to a public-sector union without first giving affirmative consent for the funds to be withheld from their paychecks. The Court found that requiring employees to pay dues or fees without consent is a form of compelled speech and violates employees’ First Amendment rights. The ruling ended the deduction of agency or so-called “fair share” fees from public employees’ paychecks.
While the State of Alaska had already stopped deducting agency fees from non-members’ paychecks after Janus, state statute does not describe how to obtain affirmative consent from employees. As a result, the state defers to the “union-sponsored” system of obtaining this permission whereby the state is not involved. This is problematic because the employee is faced with the decision to waive or retain his or her First Amendment rights against compelled speech, and the state is charged with deducting dues or fees from the employees’ paycheck based on that decision.
Because the state doesn’t directly obtain consent from employees and isn’t involved in the process, it is impossible for the state to know if state government employees gave voluntary affirmative consent for dues deductions. In other words, the employer must have clear and compelling evidence that the waiver of the employee’s First Amendment right was given without coercion.
Since payroll deductions are a state-facilitated process and are created by state law, the Attorney General’s opinion recommended the state handle obtaining affirmative consent from employees to ensure there is clear and compelling evidence they knowingly gave permission, and did so without coercion.
In his opinion, Attorney General Clarkson said,
“By ceding to the unions themselves the process of eliciting public employee’s consent to payroll deductions of union dues and fees, and unquestioningly accepting union-procured consent forms, the State has no way of ascertaining—let alone by “clear and compelling evidence”—that those consents are knowing, intelligent, and voluntary. The State has thus put itself at risk of unwittingly burdening the First Amendment rights of its own employees.”
The attorney general recommended the state begin using an affirmative consent, or opt-in system, rather than relying on the unions themselves to obtain approval from employees, to ensure all consent forms are signed with “knowing, intelligent, and voluntary” consent. In addition, he recommended the state create a renewable process annually to prevent the employee consent agreements from becoming “stale.”
In mid-September, Alaska sued the Alaska State Employees Association (ASEA) for violating public employees’ First Amendment rights by limiting their ability to resign membership and opt out of paying dues and fees. Typically this is accomplished through opt-out window provisions within union contracts that allow workers to withdraw membership and opt out of dues collections during specific timeframes within the year.
The presence of opt-out windows in union contracts directly contradicts the language of the Janus decision, which states “The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”
If a worker no longer affirmatively consents to pay union dues, unions should immediately cease deducting dues from the employee.
In response to Attorney General Clarkson’s opinion and suit, the ASEA countersued the state for “changing union member dues deduction procedures, spreading misinformation to our members, and interfereing with the relationship between our union and our membership.” An Anchorage Superior Court judge ordered a temporary halt to the Dunleavy administration’s new opt-in procedures until the matter could be settled in court. The Anchorage Daily News’ James Brooks believes the suit will eventually be settled in the state’s Supreme Court in favor of the Dunleavy administration.
The outcome of the case could significantly impact dues deduction processes throughout the country, including Maine. Clarkson has stated he has been in discussions with other attorneys general who are closely watching the developments in Alaska.