Author: Adam Crepeau

Public workers are working hard to protect their Janus rights

Public workers are working hard to protect their Janus rights

In 2018, the Supreme Court of the United States ruled that requiring public-sector workers to pay dues or fees to a union without affirmative consent violates their First Amendment rights. In other words, the ruling in Janus v. AFSCME prohibited public-sector unions from collecting compulsory payments from workers. Since that time, public unions have relied on their allies in state legislatures across the country to bolster their control over public sector workers and undermine the Janus decision. Conversely, workers have taken a stand against their unions, through opt-outs and litigation, to try and gain control over their own employment.

In August 2019, the Commonwealth Foundation released a report that ranked states based on their public-sector labor laws. They used 11 policy measures to fairly assess states’ laws, administrative codes and regulations related to public-sector workers. Under the foundation’s assessment, Maine received a D grade (as seen to the left) because post-Janus general labor policy continues to adversely affect taxpayers. However, the report indicated there were 29 other states that earned a C grade or above. The criteria used to determine rankings can be found here and Maine’s assessment is illustrated in the table below.

While there are more than 100 pieces of legislation related to Janus that were or are being considered by state legislatures in 2019, workers have taken another approach to creating change. Public-sector employees have been inspired by the Janus ruling and are trying to achieve additional reforms that protect their First Amendment rights through litigation across the nation. The Commonwealth Foundation’s report tracked 73 lawsuits post-Janus. These new challenges come in the form of recovering lost dues and agency fees that were collected before or after the Janus decision, the constitutionality of opt-out windows, the availability of public employees’ information to the public, and challenging the idea of exclusive representation.

Dues and Agency Fee Recovery 

Solomon v. AFSCME DC 37 — Filed July 23, 2019

Plaintiff Scott Solomon, a city planner in the New York City Department of City Planning, is seeking a refund of agency fees collected between July 23, 2016 and June 27, 2018. Prior to the Janus decision, the New York Public Employees’ Fair Employment Act gave unions that were certified as the exclusive representative of public employees in collective bargaining the ability to collect agency fees from public employees who were not members of the union. Solomon is seeking damages in the full amount of agency fees and assessments seized from their wages, plus interest, for violations of their First Amendment Rights.

Because Solomon was required to pay fair share fees as a condition of employment before the Janus decision ruled the practice unconstitutional, he may be entitled to recover the dues he paid to the union within his states’ statute of limitations.

Mattos et al., v. AFSCME Council 3 — Filed September 3, 2019

In this case, 19 plaintiffs filed a federal class-action lawsuit against their public sector union to recover non-member agency fees collected before the Janus ruling. More specifically, they want the dues collected between September 4, 2016 and June 27, 2018. The plaintiffs assert that AFSCME Council 3 collected agency fees prior to the Janus decision without affirmative consent and as a condition of employment. Because these funds were collected without the affirmative consent of the plaintiffs, they are seeking to be awarded damages or restitution in the full amount of agency fees and assessments seized from their wages, plus interest, for violations of their First Amendment Rights.

Halloran v. AFSCME Council 5 — Filed September 16, 2019

Susan Halloran, a senior account clerk at Inver Hills Community College, was pressured to join AFSCME Council 5 on April 15, 2019. During a training session, she was asked to sign a dues authorization form on a union representatives’ tablet. When she asked how much would be deducted from her paycheck, the union representative was unable to apprise her of the exact percentage that would be taken out. Halloran claims she felt pressured to sign the dues authorization form and was not told she had a choice to decline as a result of the Janus decision.

After calculating the cost of union dues annually, Halloran decided to contact the union representative to withdraw her registration, partially due to the cost of medical bills for cancer treatments. The union representative declined her registration and instead told her she is responsible for an entire year of dues. As a result, Halloran is seeking a declaration that the union card she signed under pressure cannot be used as a basis for affirmative consent because “such authorization was given without knowing and intelligent waiver of her First Amendment rights.” In addition, she wants the court to declare that the withdrawal of her waiver was timely, made in good faith and would not have caused substantial harm to other parties. Lastly, she wants to be awarded damages for the dues that have been collected since April 2019.

Because she felt pressured and was unaware of her rights under Janus, Halloran should have the ability to opt out of paying dues to the union, especially if it is going to hinder her ability to pay for essential medical bills.

Wenzig v. SEIU Local 668 — Filed w/ Amendment October 28, 2019

Janine Wenzig, an employee in the Pennsylvania Department of Human Services, paid approximately $440 in agency fees annually to SEIU Local 668 as a non-member. In this case, Wenzig and Catherine Kioussis are seeking to recover the funds they and other state employees paid to the union as non-members between August 7, 2017 and June 27, 2018. Again, this is a case whereby non-union public employees were compelled to fund their union without affirmative consent before the Janus ruling. Therefore, they may be eligible to recover damages in the amount paid in agency fees between August 2017 and June 2018.

Opt-Out Windows

Stroeder v. SEIU Local 503 — Filed July 30, 2019

Colleen Stroeder, an employee at the Oregon Department of Transportation, was told by her supervisor that she was required to become a member of SEIU Local 503 and pay union dues. As a result, around $800 was deducted from her paychecks annually. After the Janus decision, Stroeder learned that she was not required to join the union or pay compulsory dues. Thereafter, she sent a letter to the SEIU to resign her membership and cease dues deductions.

In response, the union directed her to an opt-out window codified in state law that had passed 10 days before she sent her union resignation letter. According to state law, employees had a mere 15 days to opt-out of their union annually. Therefore, the SEIU rejected her request to opt-out and cease dues deductions. As a result, Stroeder filed a lawsuit to challenge to the opt-out window and to recover dues paid to the union. According to the plaintiff, the opt-out window prevents her from freely associating or disassociating with the SEIU.

Public employees should have the option to join or leave their workplace’s union as they please. Oftentimes, labor organizations and public officials create opt-out windows to make it easy to join a union but extremely difficult to leave.

Jackson v. Napolitano — Filed July 30, 2019

Michael Jackson and Tory Smith, employees at the University of California, San Diego, believed they were required to join and pay dues to their union prior to the Janus decision. Once they learned about their rights under Janus, they tried to opt out of Teamsters Local 2010. Due to a gag rule (a law that prohibits employees from speaking with their employer and vice versa about payroll deductions, union membership and their rights under the Janus decision) on the books in California, Jackson and Smith are prohibited from discussing their membership or payments to Local 2010 with the university.

When they approached the union about withdrawing, they were told they would not be able to opt-out until a 30-day window before the expiration of their contract. For them, the contract is in effect until March 31, 2022. If Jackson and Smith chose to do nothing, they would pay approximately $1,850 and $1,950 to Teamsters Local 2010, respectively, before their union’s contract expires.

Both Jackson and Smith were not afforded the opportunity to give free and affirmative consent to waive their First Amendment rights before the Janus ruling. Before the Supreme Court’s decision, they were presented with a false dichotomy; either pay dues for membership or agency fees for non-membership. Before Janus, they did not have the choice to refuse having funds deducted from their paycheck and sent to the union. Therefore, both plaintiffs are seeking monetary damages for the amount of dues they paid to the union without valid, affirmative and freely-given consent.

In addition, the plaintiffs are seeking the gag rules be ruled unconstitutional when affirmative consent is not freely and expressly given. In other words, employees should be able to learn about their rights under Janus from their employer. Further, they want a declaratory judgement that the union membership cards signed before Janus cannot be considered valid, freely-given affirmative consent because Jackson and Smith were presented with a false dichotomy of choices.

Exclusive Representation

Uradnik v. Inter Faculty Organization — Filed December 4, 2018

Kathleen Uradnik, a political science professor at St. Cloud State University in Minnesota, decided to challenge the idea that the labor organization at her workplace is the sole representative for public employees and has the exclusive right to speak on their behalf. She made the choice not to join the Inter Faculty Organization because she opposes some of the stances the union takes during collective bargaining and when they advocate for political causes. In addition, the Inter Faculty Organization’s contract prevents Uradnik from serving on any faculty committees, including the Faculty Senate, because she is not a member.

Through Minnesota state law, labor organizations are granted the power of exclusive representation, or the ability to negotiate on behalf of all employees in a workplace, a provision unions fight for in labor law. Even employees who disagree with their unions’ stances during collective bargaining are silenced because of the unions’ “right” to exclusive representation.

Uradnik is seeking a preliminary injunction on designating unions as the exclusive representatives for public sector employees. On April 29, 2019, the Supreme Court of the United States declined to grant certiorari to Uradnik but gave her a chance to have the case heard before a U.S. District Court based on its merits.

Reisman v. Associated Faculties of the University of Maine — Filed August 10, 2018

Jonathan Reisman, an economics professor at the University of Maine at Machias and former grievance officer for his union, is also attempting to challenge exclusive representation in court. More specifically, he is challenging the Maine Labor Relations Act, which prohibits public employees from representing themselves in collective bargaining and other negotiations with the university. Like other workers across the nation, Reisman was unhappy with some of the political and policy stances taken by the state and national partners with whom his union is affiliated.

Because a portion of his dues were funding his union’s state and national affiliates, he decided to opt-out and resign from his position as a grievance officer. Despite his decision, the union still acts as the exclusive representative for his workplace and bargains on his behalf. When the Associated Faculties of the University of Maine (AFUM) speaks to the university about wages, hours, benefits and other conditions of employment, Reisman cannot contribute his input to that dialogue. In other words, this relationship with AFUM is non-consensual and Reisman wants it terminated.

In the lawsuit, Reisman is seeking a preliminary injunction to prevent AFUM from representing non-union employees. Last month, Reisman lost his battle with the 1st Circuit Court of Appeals in Boston when they upheld the U.S. District Court’s decision to dismiss the case. However, his attorney intends to appeal the decision to the Supreme Court of the United States. If the Supreme Court decides to grant certiorari, it may become a landmark case in the fight to protect workers’ First Amendment rights.

Information Sharing

Suhr v. New York State Department of Civil Service (NYSDCS) — Filed October 25, 2019

On April 24, 2019, Daniel Suhr filed a Freedom of Information Law (FOIL) request with the New York Department of Civil Service to obtain public employees’ names, home zip codes, hire dates, labor organizations, bargaining units and payroll deduction selections to inform them of their newfound rights under Janus. The NYSDCS released all of the information except zip codes attached to the names of individual public employees and cited Governor Cuomo’s Executive Order 183. After Suhr was denied upon appeal to the NYSDCS FOIL Appeals Officer, he filed a petition with the New York Supreme Court to declare the FOIL Appeals Officer is in error and that Executive Order 183 does not prevent the NYSDCS from administering the zip codes of public employees. In addition, Suhr wants the court to direct the NYSDCS to give him the information sought.

It is clear the Janus decision has sparked other public-sector employees to speak out against their unions to reaffirm their constitutional rights. While the list of litigation above is non-exhaustive, it illustrates how public sector workers feel about unions restricting their First Amendment rights in the workplace.

Alaska AG wants new protections for public employees that should be replicated in Maine

Alaska AG wants new protections for public employees that should be replicated in Maine

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.

One year after the Janus decision, there is still work to do

One year after the Janus decision, there is still work to do

Thursday, June 27, 2019 marks one year since the U.S. Supreme Court ruled in favor of Mark Janus, a former union employee who was aggrieved because the agency fees that he was forced to pay to the American Federation of State, County and Municipal Employees (AFSCME) were being used to promote political speech with which he disagreed. 

Janus worked for the Illinois Department of Healthcare and Family Services as a child support specialist, and he disagreed with not only AFSCME’s political stances, but the tactics and positions that the union took toward collective bargaining. He believed the positions taken by AFSCME did not take the fiscal crises in Illinois into consideration, and therefore did not represent the best interests of Illinois citizens, himself or his colleagues in the department.

Agency fees are supposed to be a “proportionate share” of what union members pay for services and representation, covering activities “germane to [the union’s] duties as collective bargaining representative.” The agency fees deducted from Janus’ paycheck totalled $535 annually, and were used to conduct activities with which he disagreed.

The main argument in support of agency fees is that collective bargaining agents are required to represent all employees during negotiations, thus both members and non-members should be required to pay for these services. However, some employees, such as Janus, may not agree with the positions taken by their union during the collective bargaining process, yet they are forced to pay for a service they do not want. Before the Supreme Court’s ruling in Janus v. AFCSME, unions could coerce employees to pay agency fees, and have historically labeled workers like Janus as “free riders” for receiving the perceived benefit of these services without being dues-paying members. But consider the following quote from the Janus decision: 

“Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage. Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. As we have noted, “free-rider arguments . . . are generally insufficient to overcome First Amendment objections.” To hold otherwise across the board would have startling consequences. Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?”

In addition to the quote above, the free rider argument was further scrutinized by the high court because public-sector unions desire the ability to represent all employees in order to have power over the collective bargaining process. The Supreme Court argued that the power gained by representing all employees outweighs the burden of representing non-members who do not pay dues, and concluded that agency fees are a violation of public employees’ First Amendment protections under the U.S. Constitution. In addition, the Court ruled that agency fees cannot be deducted from a non-union public employee’s paycheck without affirmative consent. While this is a clear benefit to public employees, there is still work that needs to be done to protect these rights. 

My Pay My Say Maine, a project of The Maine Heritage Policy Center, is a new initiative in Maine dedicated to educating public employees on their right to opt out of union membership and stop subsidizing activities with which they disagree. According to the Bureau of Labor Statistics, the United States was estimated to have approximately 7.17 million public employees who are members of a union in 2018, or around 33.9 percent of public-sector workers overall.

While the Janus decision has freed non-union workers from paying agency fees, legislators this session rejected a bill, LD 1232, that would have removed provisions from state statute that require public-sector employees to pay dues, fees or assessments for collective bargaining. While this proposal included Right-to-Work reforms, the Labor and Housing Committee could have reported out an amendment that simply struck the existing provisions within state law that conflict with Janus decision. This change should be made because public-sector employees deserve to know they are no longer required to pay dues or agency fees to government unions, and these protections should be codified in state law. 

The current statute reads, “an employee may be required to pay to the organization that is the bargaining agent for the employee a service fee that represents the employee’s pro rata share of those expenditures that are germane to the organization’s representational activities.” This begs the question: Are lawmakers actively working to conceal the rights of public employees under Janus?

These devious tactics are not new or unique to the state of Maine. Within two weeks of the Janus decision, Governor Andrew Cuomo of New York signed an executive order to prevent public entities from sharing public employees’ contact information with outside groups. In essence, he did not want outside groups to inform public-sector employees of their rights to opt out of their union. A bill with similar intent passed with legislative approval in Maine and was signed by Governor Mills on June 20. 

LD 1451 mandates that public employers provide a collective bargaining agent with the name, job title, workplace location, home address, work telephone number, personal telephone number, work email address, personal email address and date of hire of new employees. In addition, this information cannot be disclosed to the public and cannot be obtained through a Freedom of Access Act (FOAA) request. In summation, this new legislation allows unions to bombard public employees with information about joining their union and prevents outside organizations from informing those same employees of their constitutional rights under Janus

In addition to providing this information to unions, public employers are going to be required to provide a meeting space for an employee and collective bargaining agent to meet on the employer’s premises for at least 30 minutes, and permits bargaining agent to use the employer’s email system to communicate with employees. Public employees can only opt out of receiving communications from a collective bargaining agent or stop allow them from having further access to their information after the initial meeting and disclosure of private information is made. 

In summation, public-sector unions will stop at nothing to continue suppressing public employees’ right to opt out of union membership and stop subsidizing the organization. The My Pay My Say Maine website and campaign will assist in the endeavor of educating public employees about their rights under Janus

Regardless of one’s position of union membership, it is reproachable to prevent individuals from learning about First Amendment protections in the workplace. These attempts to suppress information only serve the interests of unions, not the workers they are supposed to represent. 

LD 1451: Mandatory disclosures of government workers’ private information as a condition of employment

LD 1451: Mandatory disclosures of government workers’ private information as a condition of employment

Are you a public employee? Public sector labor unions in Maine have been granted access to your personal information, regardless of whether you’re a member of the union. They’ve been granted exclusive access to this information under LD 1451, a bill sponsored by Rep. William Pluecker and signed into law by Governor Janet Mills on June 20 that gives this information to unions without giving you an opportunity to opt out of the disclosure.  

Make no mistake, LD 1451 was introduced in response to the Supreme Court’s decision in Janus v. AFSCME that struck down “fair share” or agency fees and gave public employees a choice whether to financially support a union.

Under LD 1451, unions get access to all names, home addresses, telephone numbers, personal email addresses and birth dates of municipal, state, judicial and University of Maine system employees. This information will be disseminated regardless of whether a worker chooses to join a union. There is no mechanism in the law for a public employee to opt out of the union having access to their personal information; a public employee could not prevent their employer from disclosing this information to the union under the bill. The only opt-out permitted under the law comes after an initial disclosure of private information to a union.

The measure also requires employers to give public-sector labor unions a space to meet with employees, gives unions the right to meet with new employees for a minimum of 30 minutes during work hours and the right to use the employer’s email system to communicate with employees.

Giving unions exclusive access to employees’ information while excluding it from outside organizations is a purely political move that undermines the First Amendment rights of public employees. In response to Janus, a number of organizations have been created to inform public employees of their rights under the decision, including My Pay My Say and Workers Choose. The passage of LD 1451 prevents outside organizations from easily making contact with public employees to educate them about their constitutional rights to opt out of paying dues and fees under Janus.

Instead of giving employees a choice, LD 1451 helps unions establish a monopoly over public employees’ personal information, regardless of whether a public employee wants this information to be accessible to a union. This begs the question: Why should the state allow public-sector unions to have exclusive access to public employees’ private information? The answer is simple: Public-sector unions do not want public employees to know they have a choice. They don’t want workers to learn how to opt-out of paying dues, or that they can no longer be forced to compensate unions under the Janus decision.

This tactic is far from being new. Within two weeks of the Janus ruling, Governor Andrew Cuomo of New York signed an executive order to prevent public entities from sharing public employees’ contact information with education groups. In essence, Gov. Cuomo did not want efforts like My Pay My Say or Workers Choose to reach public employees in his state. LD 1451 has the same effect in Maine.

Despite the Janus ruling, Maine lawmakers in the most recent legislative session neglected to remove provisions from Title 26 that require public employees in Maine to pay agency fees. Maine law is currently in violation of federal labor law, and lawmakers should immediately move to strike agency fees from Maine statute in the Second Session of the 129th Legislature.

To be clear, LD 1451 is not pro-worker; it totally disregards the wishes of public employees. This bill only serves the interests of labor unions who fear public employees will exercise their newfound constitutional rights under Janus.

At its core, LD 1451 is an attempt to work around the Janus ruling by giving public employees’ contact information to unions without employees’ consent, and withholding the same information from other groups that have an interest in informing employees of their Janus rights.