Right-to-Work for 
Public Employees Is Here. Now What?

Winter 2019 Insider

Right-to-Work for 
Public Employees Is Here. Now What?

Dec 20, 2018 8 min read

In Janus v. American Federation of State, County & Municipal Employees, the Supreme Court held that public-sector unions could no longer force nonmembers to pay representation fe Jeff Malet Photography/Newscom

On June 27, 2018, the Supreme Court overturned the four decades-old agency-fee set up that had allowed state worker unions in 22 states to charge representation fees to nonmembers. In practice, the arrangement allowed unions to force nonmembers to donate billions of dollars each year in pursuit of political agendas that they had not chosen to support.

In Janus v. American Federation of State, County and Municipal Employees, the Court held that this arrangement violated public employees’ First Amendment rights of free speech and free association. The ruling directly affected nearly 5 million public employees working in the 22 states without public sector right-to-work laws. 

But the court’s holding is not self-executing, and past experience and current events show that much work is necessary to overcome union roadblocks erected to prevent employees from leaving.

Why the Agency-Fee Arrangement Violated Workers’ Rights

Janus was a challenge to agency fees, which are the payments charged to nonmembers in a bargaining unit where there is a mandatory bargaining representative (i.e., a union). A union member pays dues, while the nonmember pays agency fees. Theoretically, under the 1977 Supreme Court case, Abood v. Detroit Board of Education, the public-sector nonmember employee was supposed to pay only for a proportional “nonpolitical” cost of bargaining and other union functions. Typically, a nonmember paid around 75 percent to 80 percent of what a union member paid.

Justice Samuel Alito wrote the majority opinion in Janus and explained some First Amendment principles:

Free speech serves many ends. It is essential to our democratic form of government and it furthers the search for truth. Whenever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends.

When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning. […] 

Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.”

The majority recognized that state spending for employee benefits is “a matter of great public concern.” In other words, all governmental spending on public sector wages and benefits is a political matter. Further, in collective bargaining, unions often touch upon important public policy debates. Discussing education, Justice Alito noted the controversies surrounding merit pay and pay based on seniority, teacher dismissal standards, and ways to measure student success. These public policy matters are obviously political in nature. Thus, the majority recognized it was not possible to split public sector bargaining into political and nonpolitical categories. The old system was unworkable and based on faulty presumptions.

Assuming that an average union member pays $600 in annual dues or agency fees, public sector unions collect around $3 billion a year from the 5 million unionized employees in the 22 states where agency fees were legally permissible. Ninety percent of those employees are located in 11 states—California, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Ohio, Pennsylvania, and Washington. The remaining 10 percent are located in Alaska, Delaware, Hawaii, Maine, Missouri, Montana, New Hampshire, New Mexico, Oregon, Rhode Island, and Vermont.

Public sector unions have come to be of critical importance to the Left. The unionization rates in the private sector have collapsed. In 1983, 20.1 percent of private sector employees were unionized. By 2017, that share had dropped to 6.5 percent. In the public sector, the unionization rate is 34.4 percent, roughly where it has been since the mid-1970s. Just around 50 percent of all unionized workers today are in the public sector.

Seeking to maintain the money supply, AFSCME and its supporters contended that since Abood was decided in 1977 and had allowed agency fees, it would be unfair for the Supreme Court to prohibit them now. Justice Alito and the rest of the Janus majority were unsympathetic:

We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.

What the Ruling Means

The Supreme Court made it clear that agency-fee deductions must stop immediately, and even states like California and New York complied. What is less clear is how Janus applies to employees who are union members but may no longer want to be members now that their financial support can no longer be compelled. Here is the pertinent language from Janus:

Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.

Many people have taken this to mean that not only should all mandatory agency fee payments cease, but every union should stop collecting dues from each member until that member signs a post-Janus consent to join the union. This is in part based on a previous Supreme Court decision (cited in Janus), which indicates a waiver must be of a “known right or privilege.” Not surprisingly, the unions argue that only agency fees are affected. Litigation will likely develop on this issue.

Regardless of the way such a case would turn out, the legal process often takes a long time, and as we at the Mackinac Center have learned from experience following the passage of Michigan’s right-to-work law, freedom is not self-executing. Many employers, officials, and those in union leadership will be silent about how employees may exercise their rights. Many in the freedom movement are playing a vital role in informing these employees that they now have a choice.

What the Unions Are Doing Now

The Supreme Court had begun questioning Abood in 2012’s Knox v. Service Employee International Union and that continued in 2014’s Harris v. Quinn and 2016’s Friedrichs v. California Teachers Association. Thus, the unions were aware that agency fees were at risk. So they turned to their legislative allies to make it harder for their current members to get out, to make it harder for third parties to inform workers of their rights, and to give themselves exclusive access to new employees. 

In February, Washington enacted a state law that gave the union access to new employees so it could make at least a 30-minute presentation. 

Historically, in New York, employees could leave a union and end financial support to it at any time. In April of this year, the state passed legislation that permitted unions to severely limit employees’ time period for leaving. It also gave the union the right to personal information of all new employees and to meet with new employees during work hours.

Freedom is not self-executing. Many employers, officials, and those in union leadership will be silent about how employees may exercise their rights. Many in the freedom movement are playing a vital role in informing these employees that they now have a choice.

In May, New Jersey passed the “Workplace Democracy Enhancement Act.” That law gave the unions a 30- to 120-minute meeting with all new hires. The unions will also receive employees’ home and work emails and home and work phone numbers, which must be updated every four months. Other groups or individuals are banned from receiving any of this information, even through a public records search. New Jersey limited the time that employees could leave the union to 10 days after the employee’s work anniversary date. By making this period employee-specific, the New Jersey Legislature made it harder for third parties to notify employees of their rights in a timely manner since it is difficult to ascertain an individual’s anniversary date and to thereby provide notice when the employee can act.

On the day that Janus was decided, California passed legislation that made employees seeking to stop dues deductions send that request to the union rather than the employer, which is now prohibited from making any type of independent inquiry. Public employers are not allowed to “discourage” employees from joining the union or from signing dues deductions. Unions are given access to new employee orientations, and the location of these orientations are to be secret so as to prevent third parties from interfering with the union’s pitch. 

The Battles Ahead

A number of lawsuits related to Janus already have been filed. Many seek “claw backs” of agency fee payments on a class-wide basis. Such suits have been filed against the state-level teachers unions in California, New York, Pennsylvania, New Jersey, Maryland, Minnesota, Alaska, and Washington. Similar claims have been filed against the SEIU home-help unions in California and Illinois. Other suits seek to build on Harris v. Quinn and Janus and challenge whether public employees can ever be forced into mandatory unions. Some of these cases include challenges to the pro-union legislation discussed above. It can safely be predicted that more lawsuits will be filed.

Again, the courts are not the only means of enhancing and protecting freedom. Aside from the informational campaigns mentioned earlier, there is also model legislation for governments that seek to implement Janus-protections fully to make certain that no employee—union member or non-union member—can be compelled to provide support to a government union.

A key question in the next couple of years will be: To what extent will unions change their political and spending habits in their quest to retain membership? In 2018, many of the largest national unions helped vulnerable Democratic incumbents in U.S. Senate seats. According to OpenSecrets.org, the top 12 senators receiving money from government unions are all Democrats: Sens. McCaskill (Mo.), Brown (Ohio), Heitkamp (N.D.), Baldwin (Wis.), Nelson (Fla.), Tester (Mont.), Casey (Pa.), Manchin (W.V.), Cardin (Maine), Kaine (Va.), Klobuchar (Minn.) and Stabenow (Mich.). Though most of those senators hail from right-to-work states, national unions raised money elsewhere and redistributed it to them.

But Janus may strike a serious blow to this model. The U.S. Supreme Court’s declaration means all state and local government workers now have a right to choose. Will union members in California, New York, and elsewhere be content to be the piggybank for political fights across the nation? Having a choice in whether to pay money to the union gives workers the option to decline to fund that agenda.   

A key recent theme for many groups on the Left is “intersectionality.” The dictionary definition is “the interconnected nature of social categorizations such as race, class, and gender as they apply to a given individual or group, regarded as creating overlapping and interdependent systems of discrimination or disadvantage.” Politically speaking, it’s where a broad variety of groups on the Left gather to further the overall agenda of all. This includes unions, environmental groups, trial attorneys, and more. 

The problem? Many individuals belonging to any one of these groups disagree with the agenda of the other groups. When unions can force people to pay, this isn’t a problem. But if they need to convince people that the benefits of union membership are worth the cost, the unions’ priorities might change.

No matter the manner in which the unions react, Janus is a monumental win for freedom. But, to make certain it has the broadest possible impact, public officials and those concerned with good public policy must make certain that steps are taken to properly implement it. These include making sure public employees know their rights and how to defend them, pursuing legal remedies when unions attempt to deny those rights, and alerting voters when lawmakers propose legislation that diminishes those rights. The Janus decision has too much potential for positive change to be left undefended. 

Mr. Wright is vice president for legal affairs at the Mackinac Center for Public Policy.