Freedom Foundation

Texas AG Urges State to Comply with Janus. Is Oregon Listening?

June 27 will mark the second anniversary of Janus v. AFSCME, a landmark U.S. Supreme Court ruling that should have been complied with from Day 1 — and no organization in the country is working harder than the Freedom Foundation to ensure it is.

But that fight won’t be over until public-sector unions respect the right of every government employee to opt out of membership and dues at any time and for any reason. In the meantime, we’re extremely gratified by developments like the news that came out of Texas this week.

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

His opinion echoes almost word for word language formally suggested by the Freedom Foundation.

While Janus clearly and unequivocally struck down state laws mandating union dues payment, unions and their enablers in elected office have sought to impose all kinds of rules and regulations making it simple to join up but nearly impossible to resign or end the automatic withdrawal of union dues from their paychecks — a practice common in most states.

Automatic withdrawal of union dues 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 that largely reflect suggestions submitted by the Freedom Foundation to his office in February.

First, the opinion noted, “(T)he state must ensure that employee consent to a payroll deduction for membership fees or dues … is collected in a way that ensures voluntariness.”

He emphasized that the employee should be the one giving authorization for deductions directly to the employer rather than allowing the union to say who is or isn’t a member.

This change will help protect against fraudulent authorizations by unions. Here in Oregon, the Freedom Foundation has filed three lawsuits on behalf of government employees who never authorized dues deductions, so the union simply forged their name on a membership card.

In Oregon, state employers listen only to what the union says. It is time for employees to be put back in charge.

Second, the Texas 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 ruling noted: “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. Most public employees still do not realize they have a choice about union membership, and the unions almost never inform employees of their rights. This change will ensure that employees know they cannot be forced to agree to pay money to a labor union.

Finally, the Texas opinion acknowledges that public employees’ agreements to pay union dues cannot bind employees indefinitely: “(A) one-time, perpetual authorization is inconsistent with the Court’s conclusion in Janus … Organizations change over time, and consent to membership should not be presumed to be indefinite…”

To protect employees’ rights, the recommendation suggests authorizations should not last longer than one year.

This opinion makes Texas the second state in the country to take implementation of the Janus decision seriously. Last year, Alaska’s attorney general issued a similar opinion.

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.

“We urge pubic employers here in Oregon to take similar proactive steps to protect their employees,” states Jason Dudash, the Freedom Foundation’s Oregon director. “Our legal team will work with individuals or government employers to implement best practices. While we’ve had to resort to lawsuits on behalf of employees, it is far better if employers take the initiative as Texas is doing rather than leaving the work of implementation to the courts.”