Freedom Foundation

Texas AG opinion adopts Freedom Foundation recommendations

In an opinion released today, Texas Attorney General Ken Paxton concluded the state’s practice of collecting union dues from public employees’ wages should be overhauled to better protect employees’ constitutional rights.

The opinion, No. KP-0310, comes in response to the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME — which held that public employees cannot be required to pay union dues or fees against their will — and adopts several of the Freedom Foundation’s legal positions and recommendations.

While Janus clearly and unequivocally struck down state laws mandating union dues payment, unions and politically allied state officials have sought to implement various processes, practices and policies to make it easy for unions to sign public employees up for union membership but difficult for employees to resign.

Such endeavors are facilitated by the fact that most states allowing collective bargaining by public employees also permit or require government employers to withhold union dues from employees’ wages via payroll deduction, which means employees have less control over the payment of union dues than other bills or memberships they would ordinarily pay themselves.

Paxton’s opinion reached three primary conclusions which largely reflect recommendations submitted by the Freedom Foundation to his office in February.

First, the opinion noted,

“To be consistent with Janus, at a minimum, the State must ensure that employee consent to a payroll deduction for membership fees or dues in a union or employee organization is collected in a way that ensures voluntariness. This assurance could be secured, in part, by requiring that an employee, and not an employee organization, directly transmit to an employer authorization of the withholding.”

Current practice in Texas allows unions to submit dues-deduction authorization forms to the employer on behalf of the employee, which leaves the door open for fraudulent activity. On the West Coast, where state governments generally require public employers to deduct dues from whomever unions direct, the Freedom Foundation has uncovered multiple cases of union organizers forging employees’ signatures on union membership forms.

Forbidding employers from processing dues-deduction requests submitted by unions, purportedly on employees’ behalf, would lessen the opportunities for such nefarious activity.

Second, the opinion acknowledged it would be prudent for employers to provide union-represented employees with a notice of their constitutional rights not to financially support a union:

“The Court in Janus required that consent to payroll deductions for union membership dues, and the accompanying waiver of certain First Amendment rights of the employee, be ‘freely given and shown by “clear and compelling” evidence.’ But it did not provide specific language or a method by which a governmental entity must obtain consent from an employee to make a payroll deduction for union dues or fees.”

The opinion noted that a sample notice provided by Rep. Briscoe Cain, who requested the opinion, is “consistent with the knowing and voluntary requirements emphasized in Janus.”

Having employers issue such notice to their employees would help compensate for unions’ efforts to misinform workers about what Janus means and to keep them in the dark about their rights.

Finally, the opinion acknowledged that public employees’ agreements to pay union dues cannot bind employees indefinitely, suggesting that authorizations lasting one year would be appropriate:

“(A) one-time, perpetual authorization is inconsistent with the Court’s conclusion in Janus that consent must be knowingly and freely given. Organizations change over time, and consent to membership should not be presumed to be indefinite…

“That said, the Court in Janus did not articulate the appropriate interval in lieu of a one-time consent that extends indefinitely for employee deductions. The period of time for which employee consent to a payroll deduction validly operates therefore remains an open question. However, a court would likely conclude that consent is valid for one year from the time given and is sufficiently contemporaneous to be constitutional.”

This finding is also quite significant given the adoption by many government unions of policies restricting employees’ ability to cancel unwanted dues deductions to merely a few days per year. If an employee misses their escape period for cancelling the deductions, which is often generated specifically for them, they must wait another year just for an opportunity to try again.

Placing the burden on unions to annually obtain employees’ consent for dues deductions is far more equitable and legally defensible than limiting employees’ ability to exercise their civil liberties to union-designated annual periods.

The opinion makes Texas the second state in the country to take Janus seriously. Alaska’s attorney general issued a similar opinion in August 2019. While Texas officials still need to implement policies reflecting the legal conclusions of the attorney general, the opinion is a welcome first step that states around the country would do well to emulate.