James AbernathyThe U.S. Supreme Court’s 2018 decision in Janus v. AFSCME was a watershed moment in American labor law. By holding that the First Amendment prohibits public employers from forcing their employees to fund union coffers, the justices overruled generations of flawed federal court decisions – including the 1977 Supreme Court decision Abood v. Detroit Board of Education, which sanctioned the compulsory subsidization of politically powerful private interest groups called “unions.”
Unfortunately, practices on the ground don’t change overnight just because of a court decision. Government unions are deeply entrenched and extremely resistant to accountability, particularly in states that allowed the compulsory union fees prior to Janus.
Even government officials in many right-to-work states, where mandatory union dues requirements were banned even before they were struck down as unconstitutional, have been slow to realize that Janus has implications for them, too.
In Texas, however, state officials are intentionally examining existing union dues collection practices to ensure they align with Janus.
In response to a January 2020 request from Texas state Rep. Briscoe Cain, the Texas Attorney General is in the process of preparing a formal opinion as to the implications of Janus for union dues collection from Texas public employees.
As part of the process, the Attorney General requested public comments on the matter. The Freedom Foundation recently submitted comments to the Attorney General’s Office explaining the legal ramifications of Janus and recommending a series of steps the state should take to ensure it is properly protecting its employees’ rights.
In Janus, the Supreme Court not only declared compelled union fees to be unconstitutional, the court also held that the First Amendment requires prior, affirmative consent from employees before a single penny can be deducted from their wages and transferred to union coffers. The court unequivocally held that the decision by an employee to pay money to a union constitutes a waiver of First Amendment rights that “cannot be presumed” and must be “freely given and shown by clear and compelling evidence.” Proving such a waiver is a heavier burden than proving the existence of a simple contract. Employers now must ensure employees know they have the right to pay nothing to a union, and that they voluntarily waive that right.
Unfortunately for public employees, however, government employers and unions have largely ignored the Supreme Court since Janus. Instead of honoring employees’ First Amendment rights, public employers and unions are up to their old tricks. Since Janus, and sometimes in anticipation of Janus, states passed union-supported laws that outsource the protection of public employees’ First Amendment rights to unions by requiring public employers to blindly follow union directions when determining which employees have or have not properly authorized dues deductions. The conflict of interest is obvious. Unions are incentivized to violate employees’ rights in order to fill their own coffers.
It is no surprise, then, that the Freedom Foundation is increasingly filing new cases in federal court to stop unions from forging employee signatures on union membership cards. Without these lawsuits, employees are powerless to protect themselves because their employers ignore their cries for help, instead taking the union’s word that the forged signature is real.
Employers, at the behest of unions, are also continuing to enforce dues deduction authorization cards signed by employees before the Supreme Court issued Janus, which is the earliest point at which an employee could have known of and waived his or her First Amendment rights.
While states and public employers are still far from fully understanding how to enforce Janus and protect employees’ First Amendment rights, Texas should be applauded for intentionally examining its obligations.
If the state follows the Freedom Foundation’s advice, it will provide that that public employers themselves, not unions, ensure their employees have notice of their First Amendment rights and have, in fact, properly authorized union payments to be deducted from their wages. At a minimum, this requires employers to maintain copies of employees’ authorizations and confirm with those employees the authorizations are valid. Employers should also take affirmative steps to protect employees who resign their union membership and object to dues deductions, instead of outsourcing these procedures to the very unions that are incentivized to violate those rights.
Gone should be the days of employers and unions implementing arbitrary barriers that interfere with employees who try to exercise their constitutional rights, discouraging many from even trying in the first place.
The Freedom Foundation hopes Texas Attorney General Ken Paxton will issue an opinion which articulates a strong policy in favor of protecting individual employees’ First Amendment rights, rather than the coffers of institutionalized union bullies who have held sway over state legislatures for far too long.