Our state is already a right to work state. Why should the state ensure that public employees have affirmatively “opted in” to union membership?

Although many states have adopted right-to-work laws, many current dues deduction processes don’t adequately inform public employees of their First Amendment rights. Adopting appropriate processes to ensure that employees’ rights are respected is simply good bookkeeping that all states should standardize.

All public employees must be informed of their rights to abstain from union membership and provide affirmative consent to their employers before any union dues or fees can be withheld from their paychecks.

Without implementing a process by which employers can verify an employee’s direct consent to pay dues, some employees may be paying a union without realizing they have a right not to do so. This is particularly problematic since the Court has recognized that everything a public union does is inherently political.

What did the U.S. Supreme Court decide in their 2018 Janus v AFSCME decision, and how is it relevant?

Janus held that financially supporting a public union was an act of political speech, and as such, could not be compelled under the First Amendment – meaning that public employees could not be required to support a union as a condition of employment.

The Court also held that, for a union to collect payments from public employees, those employees must first acknowledge and waive their First Amendment rights. The Court stated that “[S]uch a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by ‘clear and compelling evidence.’”

To satisfy that standard in a way consistent with Janus and other Supreme Court precedent, an employee must “clearly and affirmatively consent before any money is taken from them. …” and an employee’s consent must meet certain requirements:

  • It must be a “knowing, intelligent act … done with sufficient awareness of the relevant circumstances and likely consequences.”

  • It must also be done with “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.”

To respect these principles, states must inform public employees of their First Amendment rights to either join and pay, or refuse to join and pay, a union. This information should be communicated clearly, not only at the start of a new employee’s career, but on a regular basis, to ensure that employees are regularly reminded of their constitutional rights.

Why is it important for our state to act?

Workers for Opportunity has received documents in response to FOIA requests filed across the country that have shown very few employees – in any state – are fully informed about their First Amendment rights regarding union membership. Instead, thanks to union interference, the only perspective most employees hear is the unions’ perspective. Equally problematic is the fact that few employers have processes that are designed to ensure employees are aware of their rights to not support a union, regularly remind employees of that right, and require clear and affirmative consent before taking an employee’s hard-earned money out of their paycheck.

With so many other issues facing our state, why should this take priority?

While there is certainly a lot of matters that require the attention of state legislatures, the protection of First Amendment rights for all employees are of paramount importance.

Employees should not be misled or forced into supporting political causes that they may find abhorrent, particularly given the plethora of political issues facing the nation. Ongoing political divisions and tensions have only made additional protections more urgent. Many employees are experiencing tough financial times, and are looking for avenues to save money. Informing them of their rights, and verifying that they wish to continue to support a union, supports their interests in regularly redetermining whether union membership and payment makes sense for themselves and their families.

How will this impact a state’s public employees?

Public employees will be free to make a fully-informed choices as to whether they wish to support a union. Those who want to continue to be members of a union will be able to do so, but will have the opportunity to acknowledge these rights prior to consenting to payment of any dues or fees. Employees who were not aware they did not need to join a union, or who do not support or no longer support their union’s political positions, will be able to resign their membership in a clear and uniform manner.

Will this impact private-sector unions?

Private-sector unions would not be affected by opt-in procedures, which would only apply to public-sector unions. In other words, nothing will change for non- government employees represented by a union.

What needs to be done for our state to better protect employees’ rights?

Existing statutes would need to be amended to establish opt-in procedures that ensure informed and affirmative consent from employees is a perquisite to union dues deductions.

Other states that have examined opt-in procedures have adopted a multi-factor framework. Consistently, states have required that employees be provided with a clear notice of their rights to refrain from joining a union, their rights to opt-out of union membership at any time, and their rights to be free from retaliation for exercising these rights. States have also recognized that an employee’s waiver of a constitutional right cannot be considered perpetual, and have required employees to opt-in to dues deductions annually to ensure their waivers meet constitutional scrutiny. The aforementioned notices are also provided annually.