This week marks the one-year anniversary of the U.S. Supreme Court’s decision in Janus v. AFSCME, in which the high court ruled that public-sector employees could no longer be compelled to financially support a union. While the ruling was a historic victory for First Amendment rights, many public workers are still unaware of how the ruling affects their employment and workplace.
Under Janus, public workers can no longer be required to pay agency fees (commonly referred to as “fair share” fees), or payments taken from a worker’s paycheck to compensate a labor union for its representational activities. Before Janus, these funds were deducted from workers’ paychecks, even though these workers were not members of the union. The deduction also disregarded whether the worker felt the union was adequately representing his or her interests in the workplace.
It its ruling, the Supreme Court left little ambiguity about the constitutionality of agency fees. The ruling 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.”
When Janus was decided last year, 28 states already granted the right to work without forced unionization, but roughly the 5 million workers in 22 states, including Maine, without right-to-work laws were still required to pay their unions even if they felt that the union wasn’t looking out for them.
Even after the ruling, many public employees may not know how to opt out of their union and may fear that withdrawing membership could negatively affect their employment, or that an employer may retaliate by reducing salary or benefits.
Education on these matters is needed, considering the Legislature’s approval of a bill that was signed into law by Gov. Mills on June 20. L.D. 1451 gives government unions exclusive access to the personal information of public workers before the employee even considers whether he or she wants to become a member.
The information disclosed includes the employee’s name, job title, workplace location, home address, work, home and personal telephone numbers, work and personal email addresses and date of hire. Public workers cannot opt out of this information sharing until after an initial disclosure is made to the union.
This is just one example of how unions are responding to Janus by undermining workers’ rights. They’re also pulling tricks to retain members after a worker resigns from the union. As recently highlighted by scholars at the Competitive Enterprise Institute, at least four pending lawsuits throughout the country are challenging unions that have blocked employees from leaving the union after Janus.
In many unions, workers are allowed to withdraw only during a designated period in the year. Workers who have resigned outside that window still have dues deducted from their paychecks despite the high court ruling that “neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee … unless the employee affirmatively consents to pay.”
We at the Maine Heritage Policy Center fully respect the First Amendment rights of all employees to unionize and collectively bargain for what is in their best interest. At the same time, we equally respect the First Amendment rights of public employees to disassociate from a union by opting out of membership or refusing to join in the first place. If affirmative consent has not been given post-Janus, or has been withdrawn, unions should immediately cease collecting all payments from public workers.
The continued abuse of our First Amendment, along with the passage of L.D. 1451, illustrates that there is an imbalance in the information and resources to which public-sector workers have access. That is why the Maine Heritage Policy Center has launched a new website, MyPayMySayMaine.org, to educate public-sector employees about their rights under the Janus decision and to raise awareness on future challenges for workplace freedom.
Because of Janus, workers now have a real choice; one that actually respects their First Amendment rights. They may no longer be compelled to financially support a union.
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