Last month, Alaska Attorney General Kevin Clarkson released a formal opinion that said the state is not in compliance with the United States Supreme Court ruling in Janus v. the American Federation of State, County and Municipal Employees (AFSCME). This formal opinion was issued via a request from Alaska Governor Mike Dunleavy to ensure Alaska’s current process for deducting dues from employees’ paychecks is in compliance with the Janus decision.
The Janus ruling established that public sector workers cannot be required to pay dues or fees to a public-sector union without first giving affirmative consent for the funds to be withheld from their paychecks. The Court found that requiring employees to pay dues or fees without consent is a form of compelled speech and violates employees’ First Amendment rights. The ruling ended the deduction of agency or so-called “fair share” fees from public employees’ paychecks.
While the State of Alaska already stopped deducting agency fees from non-members’ paychecks, state statute does not describe how to obtain affirmative consent from employees. As a result, the state defers to the “union-sponsored” system of obtaining this permission whereby the state is not involved. This is problematic because the employee is faced with the decision to waive or retain his or her First Amendment rights against compelled speech, and the state is charged with deducting dues or fees from the employees’ payroll based on that decision.
Because the state doesn’t directly obtain consent from employees and isn’t involved in that process, it is impossible for the state to know if state government employees gave voluntary affirmative consent for dues deductions. In other words, the employer must have clear and compelling evidence that the waiver of the employee’s First Amendment right was given without coercion.
Since payroll deductions are a state-facilitated process and are created by state law, the Attorney General’s opinion recommends the state handle obtaining affirmative consent from employees to ensure there is clear and compelling evidence they gave it knowingly and without coercion.
In his opinion, Attorney General Clarkson said,
“By ceding to the unions themselves the process of eliciting public employee’s consent to payroll deductions of union dues and fees, and unquestioningly accepting union-procured consent forms, the State has no way of ascertaining—let alone by ‘clear and compelling evidence’—that those consents are knowing, intelligent, and voluntary. The State has thus put itself at risk of unwittingly burdening the First Amendment rights of its own employees.”
The attorney general recommends using a state-run affirmative consent, or opt-in system, rather than relying on the unions themselves to obtain approval from employees to ensure all consent forms are signed with “knowing, intelligent, and voluntary” consent. In addition, he recommends creating a renewable process annually to prevent the employee consent agreements do not become “stale.”
After the Attorney General released his opinion, the Alaska AFL-CIO came out against it, expressing that the Attorney General’s “end goal is obvious; he’s attacking public workers to lower pay and benefits for every worker in Alaska, and to slash the services Alaskans count on.”
Despite the union’s bullish rhetoric, their real concern is that greater transparency and choice would result in fewer public employees paying dues and agency fees. In other words, this move would take power away from public-sector unions and give it to the public employees in the form of understanding their constitutional rights and making informed decisions.
Maine should follow Alaska’s lead in taking on the role of obtaining affirmative consent for payroll deductions. In addition, the legislature needs to consider changing state statute to reflect the Janus decision by nixing the “requirement” for employees to pay agency fees. Put simply, it is no longer constitutional and needs to be fixed when they come back for their Second Regular Session.