Even post-Janus, worker freedom remains at risk in some states
The response by states to the U.S. Supreme Court’s landmark Janus ruling, which said that it was unconstitutional to require non-union government workers to pay fees to public-employee unions, has ranged from underhanded attempts to save the unions’ bacon, to good-faith efforts to implement the spirit of the ruling.
This dichotomy is nowhere starker than the Janus-inspired policies of California and Alaska.
Last year’s decision in Janus held that government workers would no longer be required to pay fees to the unions as a condition of employment. Unions feared they would thus decide against paying agency fees.
To counter such losses and to promote union membership, the unions have ramped up their efforts on a number of fronts. In California, public employee unions are politically powerful. They have used the legislative process to promote union recruitment of government workers and make it more difficult for those workers to exercise their Janus rights.
For example, even before the Janus decision came down, the unions in California got pro-union legislators and then-Gov. Jerry Brown to enact a requirement that opened the door to union recruitment at government workplaces.
According to the education news organization EdSource, government employers such as school districts now have to “provide unions with contact information for all employees at least every 120 days and to give their employee unions regular opportunities to meet and sign up new workers, with at least 10 days’ notice.”
This policy does not allow employees to opt-out of having their personal information shared, potentially leading to harassment and coercion.
In addition, EdSource reported that language in the state’s 2018-2019 budget would prohibit government agencies from publicly disclosing information about the site and time of new employee orientations; mandate that unions, not employers, collect forms workers use to join a union or cancel their membership; and force government employers to confer with unions before sending out any mass communications about the Janus decision or other issues related to union membership.
Appallingly, these pro-union measures were adopted, and not through the regular open legislative process but through secretive budget dealings conducted behind closed doors.
This effort to keep the public in the dark about where and when employee orientations take place is intended to bar worker-freedom organizations from informing government employees about their rights under Janus.
In true Orwellian fashion, a spokeswoman for the California Teachers Association claimed that the pro-union rules were needed to halt the “rollback of worker rights,” while ignoring the basic fact that the new rules actually prevent workers from hearing about and exercising their constitutional rights.
In stark contrast to California, Alaska has just enacted a model policy promoting worker freedom in response to the Janus decision.
Alaska Attorney General Kevin Clarkson published an opinion this past August saying that the Janus decision requires “affirmative consent” and “clear and compelling evidence” that government workers who opt to pay dues are not coerced and are informed that paying money to unions waives their First Amendment rights.
Clarkson said that Janus affects not just agency fees to unions from non-union workers, but also how public employee unions collect dues from union members.
In response to Clarkson’s opinion, Alaska Gov. Mike Dunleavy issued an administrative order requiring, among other things, that all state employees who want to pay union dues will have to use a new state form to opt-in, which states clearly that signing waives First Amendment rights; that employees can opt-in or opt-out at any time with no time constraints or windows; and that employees who decide not to opt-in will not lose benefits negotiated by a union, and that they may be able to negotiate directly with the state and bypass unions.
“Alaska government employees have the right to determine whether or not to give their hard-earned pay to a union, as Janus confirms,” observes the Alaska Policy Forum, yet that right is being undercut for California government workers by public employee unions and their lawmaker allies.
Worker freedom from government unions is the law of the land. Americans must make their voices heard and push their governments to respect their rights, not undercut them.
Lance Izumi is senior director of the Center for Education at the Pacific Research Institute.