Freedom Foundation

State and unions warned not to deduct dues from workers who haven’t opted in since Janus ruling

Washington state’s governor and budget director were served notice on Tuesday that the state’s immediate response to last month’s U.S. Supreme Court landmark ruling in Janus v. AFSCME falls far short of what the law actually calls for.

In fact, according to an analysis by the Freedom Foundation, any dues or fees still being subtracted by the state from the checks of government workers on behalf of a public-sector labor union are illegal – unless the worker in question authorized the deduction in writing during the two weeks since the Janus ruling was issued on June 27.

In a press conference held on the steps of Washington’s Office of Financial Management, Freedom Foundation Litigation Attorney Hannah Sells warned the state and its union allies not to misinterpret the clear language of the decision’s author, Justice Samuel Alito.

Janus commanded several changes,” she said. “First and foremost, it held that the funding of public-sector unions must be voluntary. (It also) made clear that an agreement to pay union dues is no simple financial transaction, but rather a waiver of the worker’s Constitutionally protected First Amendment rights.”

The combination of those two provisions, Sells noted, change the whole calculus of how government unions must fund themselves from now on.

It can no longer simply be assumed that every worker wants to be a member and have dues deducted from their wages unless he or she has successfully navigated an opt-out process made as complicated as possible by their union.

After Janus, the burden is on the union to show the worker has knowingly and affirmatively opted in.

And since it’s impossible for the workers to have knowingly waived rights that hadn’t even been enunciated prior to the Janus ruling, it follows that every membership card currently in the unions’ files is invalid unless it was signed after June 27, 2018.

“Before Janus,” Sells said, “workers were told paying dues was a prerequisite for state employment. How could an agreement made under those circumstances be knowing? How could it be clear? How could it be voluntary? It could not.”

Anticipating the Janus ruling would go against them, unions have been furiously contacting state employees for months hoping to convince as many workers as possible – often using intimidation, deception and other dubious means – to either sign or re-sign their membership cards.

But those are now worthless.

“Any membership agreement, consent form … any document purporting to give the state the authority to deduct union funding of any kind from an employee’s paycheck in invalid unless it was signed after Janus,” Sells said.

Washington State Sen. Michael Baumgartner (R-Spokane Valley), the ranking minority member on the Washington State Senate’s Labor & Commerce Committee, attended the media event, as did Rep. Brandon Vick (R-Vancouver). Both agreed with the Freedom Foundation’s interpretation of Janus and called on the state to cease all union-related payroll deductions unless the worker had knowingly and voluntarily agreed to it before the Janus ruling was issued.

Earlier in the day, Baumgartner fired off a letter to Washington Attorney General Bob Ferguson, “demand(ing) that you … immediately take action to enforce the Janus decision mandate to stop collection of union dues to workers who have not knowledgeably given a clear, written, affirmative assent. Delay tactics are unacceptable and give the impression you care more about ‘worker organizations’ than ‘worker rights.’”

Sells noted that the Freedom Foundation has a unique understanding of the Janus ruling because the organization is responsible for key elements of it. The language outlawing so-called “opt-out” schemes, in fact, was lifted almost word for word from an amicus brief filed by Freedom Foundation attorneys in support of the Janus complainant last January.

Sells said the unions could be forced to refund potentially millions in dues money improperly confiscated from public employees, and the Freedom Foundation stood willing to represent the workers.

Tuesday’s press conference was timed to coincide with the first payday for state employees post-Janus, and prior to making the announcement, the Freedom Foundation delivered letters to both Gov. Jay Inslee and OFM Director David Schumacher “… explaining the impact of Janus and what we expect – and will insist upon seeing – change in the state’s practices going forward.”

Watch the full press conference here.