The Supreme Court declared Wednesday that one of main sources of revenue for public sector unions, fees from nonmembers, was unconstitutional. But government workers might find stopping the payments difficult.
Union leaders, who have long anticipated the ruling, have been pushing Democratic allies to pass state laws intended to circumvent the justices’ eventual decision. They have had success in statehouses in New York, New Jersey, Washington, Delaware, and Hawaii, so far.
The Supreme Court ruled 5-4 in Janus v. American Federation of State, County and Municipal Employees that the mandatory fees, dubbed “security clauses” by unions, violate nonunion government workers’ First Amendment rights. Under the ruling, workers who previously had the fees automatically deducted from their paychecks will now, in theory, be able to tell whatever state, local, or federal entity they work for to cancel them.
But, in practice, many workers are going to find that unions still have a claim on their paychecks, says Bill Messenger, the National Right to Work Defense Foundation lawyer who represented plaintiff Mark Janus. “What the court said is a union cannot take a person’s money without their affirmative consent,” he said, stressing the word “affirmative.”
For people who are not union members and never signed anything allowing the deductions, they should be able to demand the deductions stop immediately.
But it’s likely that many, if not most, public-sector workers at some point signed something at least technically making them union members or authorizing deductions. That makes opting out much more complicated because the union can set rules to do that, putting the burden on the worker to comply with them.
“The way some of the state laws are phrased is that basically the public employer has to follow the terms of [the union contract’s] dues deduction authorization. And the union makes one of those terms you can’t opt out except during a lunar eclipse or something like that,” Messenger said.
Labor leaders have been working hard to shore up those laws. They long expected that the court would declare the fees, previously allowed under a 1977 decision called Abood v. Detroit Board of Education, unconstitutional. The justices split 4-4 in a 2016 case called Friedrichs v. California Teachers Association involving the same issue as Janus. It was widely thought that only the death of Justice of Antonin Scalia that February prevented the court from overturning Abood then.
The near miss prompted organized labor to find ways to shore up existing laws. New Jersey unions were able to get Democratic Gov. Phil Murphy to sign legislation in April limiting workers to a single, once-a-year, 10-day window to opt out. That window would be based on when the worker was hired, so there wouldn’t be any common time frame that one worker could alert another to.
Four other states — New York, Delaware, Hawaii, and Washington — also passed laws within the last year affirming that any union fee deductions would be automatic and requiring that workers must opt out in writing. Individual union contracts would be able to specify those conditions. One union, New York State United Teachers, encouraged new members to sign documents limiting them to opting out only during August, when most teachers are busying preparing for a new school year.
Unions and their allies have sought to preemptively undermine the ruling in other ways. A Washington state law signed in March by Democratic Gov. Jay Inslee spun off the state entity that subsidizes in-home caregivers, who had been unionized as public-sector workers, into a private-sector organization, effectively putting them out of the reach of the Janus ruling.
In five states — California, Maryland, New Jersey, New York, and Washington — laws were passed requiring new public-sector workers to attend mandatory orientation sessions that featured union organizers.
The fees are a major source of revenue for unions that many workers would not have to pay under the ruling. An April study by the labor-backed Illinois Economic Policy Institute predicted that a win for the plaintiff in Janus would result in public-sector unions losing 726,000 people, or about 8 percent of their total membership.
An internal survey by AFSCME, which has 1.6 million members, found that only one-third would voluntarily pay dues, and half of its membership couldn’t be counted upon to do that, according to a 2015 Bloomberg report. Fifteen percent would be certain to opt out of paying dues entirely.
Unions also are trying more traditional means of retaining existing members or convincing nonmembers to sign up, such as simple outreach. But many have little experience with that method, since automatic dues deduction meant it often wasn’t necessary.
“We did a lot of surveys of why people didn’t join the union [as full members]. The No. 1 response we got back was ‘No one asked us.’ They just got a job and were automatically part of the union paying agency fees and that was it,” Ben Johnson, former head of United Professions AFT Vermont, the American Federation of Teachers’ state umbrella group, told the Washington Examiner last year.
Another wrinkle in the ruling is that by declaring the practice of security clauses to be unconstitutional, it is possible that workers could sue to have the fees they paid refunded. They face an uphill battle on that, too.
“Supreme Court decisions are presumptively retroactive,” Messenger said. “The problem was, we saw this after Harris v. Quinn [a 2014 Supreme Court case involving public-sector unions] said it was unconstitutional to take money from nonemployee Medicaid providers, the unions raised the statute of limitations defense. In most states it only goes back two or three years” for those kind of claims.
