Five years after affirming in Janus v. American Federation of State, County and Municipal Employees, Council 31 the constitutional right of public employees to decline union membership and dues but still keep their jobs and benefits, the U.S. Supreme Court has an opportunity to ensure the unambiguous intent of that ruling is fully respected.
In late August, the court was asked to consider an appeal filed by the state of Alaska of a 2023 decision by the Alaska State Supreme Court that invalidated a state program specifically created to facilitate the enforcement of Janus.
“Before we take any money from the paychecks of state employees, we need to ensure that the employees were properly advised of their rights and consented to the deduction,” Alaska Gov. Mike Dunleavy said in a written statement. “And if employees disagree with union speech, they need to be given an opportunity to opt out. Our payroll system does not adequately protect the constitutional rights of our employees and changes must be made.”
“The Janus ruling does more than just affirm that public employees have a right to opt out of union oppression,” added Eric Stahlfeld, chief litigation counsel for the Freedom Foundation, which this week submitted an amicus brief to the court in support of Alaska’s appeal. “It also clearly states that those who choose to join and pay dues to a union are waiving the right not to. But you can’t waive a right you don’t know you have.”
On paper, Janus made it possible for millions of government employees to stop paying dues and leave their union without losing anything. And hundreds of thousands all around the country have done just that. But countless others have been discouraged from even trying by union policies calculated to make the opt-out process as difficult as possible.
The Alaska program was an attempt by the state to address these obstacles by requiring that employees actually consent to having their dues money confiscated, directly to the state, free of union pressure.
Specifically, Janus concluded that:
“(S)tates and public-sector unions may no longer extract agency fees from nonconsenting employees.”
In 1977, the Supreme Court in Abood v. Detroit Board of Education first agreed that workers had a constitutional right to opt out of union membership and dues. But even those who did so could be forced to pay a so-called “agency fee,” presumably to cover their share of the union’s negotiating costs.
Janus, however, overturned that aspect of Abood, recognizing that, because virtually everything a union does has a political component, workers cannot be forced to pay dues or fees for any of it.
The Janus ruling further notes:
“Neither an agency fee nor any other payment to the union may be deducted (by the state, which as the employer, controls its own payroll process) from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”
In other words, no longer can the worker’s consent be assumed just because he or she hasn’t opted out. Janus puts the burden on the union and state to show they opted in before dues or fees can be seized.
Lastly, the ruling stipulates that:
“By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”
In its controversial action, Alaska simply asked employees to directly tell the state whether they consent to pay dues.
“The state wants employees to know they have the right not to join or financially support a union,” Stahlfeld noted. “It’s critical for the employees to have that information before the union asks them to join, which often happens in settings where the unions can apply peer pressure.”
Unfortunately, lower courts — including the Alaska Supreme Court and the 9th Circuit Court of Appeals — have been reluctant to hold either states or unions to that standard. If the U.S. Supreme Court agrees to hear the case, it will effectively be asked to specifically apply to public employers the majority opinion issued just five years ago in Janus.
If the court rejects the petition, the Alaska Supreme Court’s decision will stand. But even if the court takes up the case, a decision isn’t likely before winter. Most likely, months or years of written and oral arguments could be forthcoming.
“Unless you agree to enforce it, even a landmark ruling like Janus is just a piece of paper,” Stahlfeld said. “Because unions and activist judges have been allowed to act as if Janus never happened, states like Alaska that want to comply with the ruling have been obliged to adopt legislation reinforcing what should have happened all along.”