How the Janus decision changed America

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On June 27, 2018, the U.S. Supreme Court issued its landmark Janus v. AFSCME decision determining that all public employees are entitled to work without having to pay union dues or agency fees. As the two-year anniversary of the Janus decision approaches, it is worth examining the practical effects that decision has had on workers throughout the country.

The Janus case examined an Illinois law under which public sector employees were required to financially support a union, regardless of whether they agreed with the union’s policy positions. Mark Janus, the plaintiff, argued that such an arrangement violated the First Amendment by forcing him to subsidize speech that was contrary to his personal beliefs. The court agreed, determining that even the bargaining activities conducted by public sector unions constitutes political speech. As a result, the court ruled that public sector workers could not be compelled to financially support a union, and that a waiver of the right to not support a union was required to meet strict constitutional standards. 

Given the importance of protecting employees’ First Amendment rights, the court established an exacting standard to ensure that any waiver of those rights is constitutionally adequate. The court determined that, to be effective, an employee’s waiver must be “freely given and shown by ‘clear and compelling evidence.’” To satisfy that standard, an employee must “clearly and affirmatively consent before any money is taken from them.” 

Although the Janus decision reaffirmed the First Amendment rights of public sector employees, it was far from self-executing. Anticipating a significant reduction in membership and revenue, unions throughout the country reacted by attempting to restrict the ruling’s effects. Lawmakers introduced bills to weaken Janus; California passed multiple laws to protect union special interests before Janus even was decided. Washington, Illinois, Massachusetts, Rhode Island, and Oregon all followed suit with laws of their own. Connecticut considered legislation, which was not adopted, but which has been reintroduced this year. 

The particular effects of these bills differ from each other. But the overall goal is clear: Make it easier for unions to acquire members, empower unions to restrict dues cancellations, and protect unions from lawsuits for unconstitutional fees that were charged in the past. In short, unions nationwide pushed for legislation that would preserve their control, and finances, regardless of whether that legislation promoted worker freedom and employee rights. And if a court found them in the wrong, it was the taxpayers who were on the hook.

Some states have gone in the other direction, standing up for union workers by implementing the full decision. Kevin Clarkson, Alaska’s attorney general, recently issued an opinion requiring workers to annually opt-in to the deduction of union dues. This also requires that employees be advised of their labor rights before opting in. Gov. Michael Dunleavy later made that opinion effective through an executive order

Alaska is not alone in this regard. The attorneys general of Texas and Indiana have issued  opinions containing these requirements. Michigan, too, has taken steps toward protecting workers’ First Amendment rights. The state’s Civil Service Commission proposed rules that, if adopted, would implement these requirements for many of Michigan’s state employees. 

Janus has had a profound effect on public sector union management. Since the decision, workers throughout the country have embraced their newly affirmed freedom to avoid financially supporting union positions they personally oppose. 

In 2018 alone, the American Federation of State, County and Municipal Employees (AFSCME) lost 98 percent of its agency fee payers and the Service Employees International Union (SEIU) lost 94 percent. The National Education Association, which represents teachers, lost 2.8 percent of its members and agency fee payers, and AFSCME lost 8 percent of its membership. 

The overall impact of Janus is hard to measure, because public sector unions are not legally required to disclose membership numbers. But the available evidence shows that, despite unions’ ongoing efforts to limit the impact of Janus, the case was a boon to those public sector workers unhappy with their unions. The past two years have brought sweeping reform, the liberation of hundreds of thousands of agency fee payers, and the restoration of workers’ First Amendment rights. If the next two years are equally successful, America’s workers can look forward to even greater freedom and prosperity. 

Steve Delie is the director of labor policy and Workers for Opportunity at the Mackinac Center for Public Policy in Midland, Mich. 

Tags first amendment Janus v. AFSCME Labor relations Open shop Trade unions

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