Worker freedom activists have one more reason to celebrate following a key decision in the Last Frontier.
Alaska Attorney General Kevin Clarkson recently released a legal opinion, which explains how the state’s current payment processing system is failing to comply with the United States Supreme Court’s Janus v. AFSCME decision. The opinion will likely affect public sector workers not just in Alaska but throughout the entire country.
The Janus decision recognized the right of public sector workers to choose whether or not to join or pay money to a union. It also stated that public employees must give affirmative consent before union dues can be deducted from their paychecks. In other words, workers must opt in to public sector union membership. Some state legislatures have attempted to subvert the intent of the decision by creating limited opt-out periods, mandatory new employee union meetings and forced disclosures of private employee contact information. Clarkson’s legal opinion details how Alaska’s current paycheck processing system is not set up to meet the full Janus standard.
According to Clarkson, the Alaska state government must stop actively deducting dues from paychecks. For the government to legally deduct dues, it needs to obtain “clear and compelling evidence” that workers affirmatively consent to having money taken out of their paychecks to pay a union. At this time, Clarkson explains, the state has failed to provide evidence that workers are aware of their Janus rights.
This interpretation of Janus could force all states — not just Alaska and other non-right-to-work states — to reexamine their process for recognizing affirmative consent from public employees. Clarkson argues that Alaska should “revamp its payroll deduction process … to ensure that it does not deduct funds from an employee’s paycheck” inappropriately.
To meet the full Janus standard, Clarkson recommends Alaska obtain consent directly from employees instead of relying on a “union-sponsored system.” This way, employees can regularly opt-in and opt-out, renewing their First Amendment waiver on a regular basis. The current payroll deduction system, he argues, is “essentially a black box the state cannot peer inside of.”
This legal opinion has much in common with American Legislative Exchange Council (ALEC) model policy called the Public Employee Rights and Authorization Act. The model reiterates the requirement for affirmative consent. It also states that public employees should be allowed to opt-out of the process at any time. Another ALEC model policy, the Public Employee Paycheck Protection Act, requires public employers to obtain yearly express permission from employees to allow dues to be deducted from their paychecks.
Attorney General Kevin Clarkson’s opinion ensures that workers’ First Amendment rights are protected to the full extent of the Janus decision. Alaska and other states should reexamine their paycheck processing systems to make sure they are in compliance with the “clear and compelling” standard. When implemented, this system informs public employees of their rights and gives them regular opportunities to demonstrate if they want to opt into association with a union.
Michael Slabinski is the ALEC Director of the Commerce, Insurance and Economic Development Task Force. He researches policy focused on worker freedom and individual liberty. Follow him on twitter @MJSlabinski.
