In its landmark 2018 ruling Janus v. AFSCME, the U.S. Supreme Court affirmed that union dues may not be deducted from a public employee’s lawfully earned wages “unless the employee affirmatively consents to pay.”

But what should affirmative consent mean? Because the ruling stopped short of defining the term, lower court judges were given wide latitude to interpret it in their own way, leading to a number of eyebrow-raising decisions.

Affirmative consent should mean informed, voluntary, and active permission. Under an affirmative consent standard, the terms of a dues-payment agreement should make it explicitly clear that an employee is waiving his or her constitutional right to refrain from union membership and dues payments.

And the employee should be free to leave the union and cancel dues deductions at any time.

These principles are illustrated by a hypothetical: Netflix is one of the most popular streaming platforms in America. You may have a subscription. Now imagine one day you want to cancel it.

Maybe the platform got too expensive. Maybe its administrators got stingy about password sharing.

Whatever the reason, you decide to give Netflix customer service a call. And when you do, they tell you you’re free to quit using Netflix at any time. They will take your name off their subscriber list, and you will no longer access all the benefits of Netflix.

That was easy, you think.

Wrong.

To your absolute shock, the Netflix representative explains that you’re free to stop being a Netflix subscriber — meaning you’ll no longer have access to its programming — but you’ll still have to pay a subscription fee for the next three years.

As if that wasn’t enough, the phone call you’re making isn’t sufficient to end the deductions from your bank account. Mind you, Netflix is well aware you no longer want to subscribe. But to end the automatic payments, you must remember to call Netflix again during a 30-day window three years from now.

If you miss that window or call even one day early, your agreement to fee deductions will be automatically renewed, putting you on the hook for three more years of fees.

And there’s absolutely nothing you can do about it.

Sound like an exaggeration? It isn’t. That’s the exact scenario with which thousands of public employees are dealing thanks to public-sector unions.

In fact, the dates of that hypothetical you just read (an opt-out window of 30 days once every three years) is pulled directly from a real collective bargaining agreement between the state of California and the International Union of Operating Engineers (IUOE) that expired June 30 of this year.

Well, you might say to yourself, the workers agreed to pay, didn’t they? Of course, just as you agreed to pay for Netflix.

But there’s more to fairness than an initial agreement. This concept is strongly reflected in general contract law, which routinely renders agreements unenforceable on the basis of their unfairness.

Ironically, jurisdictions that have the strongest general contractual fairness protections are the strictest when it comes to holding public employees to the terms of their union dues agreements, no matter how unfair those provisions may be.

Take, for example, California. In that state, if any other type of contract is unfair, either as to how someone’s agreement was secured or the agreement’s terms, that contract is unenforceable.

California law stipulates that any business whose purchase contract includes an automatic renewal must provide the customer with a retainable, written acknowledgement of renewal terms. Businesses must allow customers with automatic renewal contracts the ability to terminate at will. And businesses are statutorily required to provide notice of renewal within 15 days of the renewal period if the renewal term exceeds one year.

The California legislature has no problem applying an informed, voluntary, and active consent standard to protect citizens in these instances, but the standard is entirely different when it comes to a public employee’s dues-authorization contract.

California law allows these agreements to automatically renew absent the procedural protections provided in other contractual contexts. This contradictory legal framework is present in other states, too, particularly those on either coast or the northeast.

This begs the question, why aren’t union dues-authorization contracts afforded procedural protections for the signer? Shouldn’t union dues authorizations, if they are contracts, have the same level of fairness requirements as other contracts?

The answer is clearly yes, if for no other reason than simple consistency. But there’s an even better reason.

Public employee dues-authorization cards implicate fundamental constitutional rights. Janus held that public employees’ dues deductions by definition involve a waiver of their First Amendment rights — a decision that must be verified, not just assumed.

Everyday business contracts do not involve waiving First Amendment rights, but public employee dues authorization contracts always do. It necessarily follows that any agreement implicating constitutional rights should be held to a higher standard than normal ones.

Simply put, courts should interpret Janus’ affirmative consent requirement as requiring informed, voluntary, and active consent.