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A year after Janus, many Maine public workers are still unaware of their rights

A year after Janus, many Maine public workers are still unaware of their rights

This week marks the one-year anniversary of the U.S. Supreme Court’s decision in Janus v. AFSCME, in which the high court ruled that public-sector employees could no longer be compelled to financially support a union. While the ruling was a historic victory for First Amendment rights, many public workers are still unaware of how the ruling affects their employment and workplace.

Under Janus, public workers can no longer be required to pay agency fees (commonly referred to as “fair share” fees), or payments taken from a worker’s paycheck to compensate a labor union for its representational activities. Before Janus, these funds were deducted from workers’ paychecks, even though these workers were not members of the union.

Click here to continue reading Jacob Posik’s column as published in the Portland Press Herald. 


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. 

Government workers remain in the dark one year after the Janus decision

Government workers remain in the dark one year after the Janus decision

Today marks the one-year anniversary of the U.S. Supreme Court’s ruling on Janus v. the American Federation of State, County and Municipal Employees (AFSCME). The Janus V. AFSCME decision is one of the biggest rulings in favor of the First Amendment in recent history. The ruling defends public workers from compelled speech in support of unions through the deduction of dues and fees from workers’ paychecks.

Prior to Janus, employees who did not wish to join a union were compelled by states and collective bargaining law to pay the union “agency fees.” Agency fees were long seen as a means for workers to compensate unions for their collective bargaining efforts—regardless of whether or not the worker wanted the organization to bargain on their behalf. 

Unions had long fought to keep agency fees, often referring to tem as “fair share fees,” and contending that they are necessary to prevent “free riders”—a term for nonmembers that benefit from collective bargaining but don’t pay union dues. Hence why, during arguments before the high court, the union’s defense was that agency fees were not compelled speech and were instead fees for services from which nonmembers benefitted.

The Supreme Court did not agree with organized labor’s characterization of agency fees as non-political speech. In fact, when writing for the majority, Justice Alito explained that union speech is political speech because “it covers critically important and public matters such as the State’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights.” Thus, Justice Alito dismantled AFSCME’s argument that agency fees are not associated with political speech.

The Janus decision makes clear that the deduction of agency fees from workers’ paychecks violates the First Amendment. In fact, the decision goes one step further by stating that, in order for a union to deduct fees or dues of any sort from a union’s paycheck, the public worker must give the organization affirmative consent.

In the year since the monumental Janus decision, many public sector employees have stopped paying agency fees. Union reports from 2018 show that AFSCME lost 98 percent of its agency fee payers after the Janus decision, while the Service Employees International Union (SEIU) lost 94 percent.

The Supreme Court’s ruling in favor of Mark Janus last June has freed hundreds of thousands of public sector employees from unwanted agency fees. However, the decision has not completely freed workers from union control. 

Currently, many states have laws on the books that make government unions “exclusive representatives” of employees within a workplace. Such laws create a representational monopoly where only one union or organization is permitted to negotiate on behalf of the employees within the bargaining unit. In other words, individuals in a unionized workplace who are not members of the union are not allowed to negotiate on their own behalf. This is likely the next step for workplace freedom after Janus; workers who are not members of the union should be permitted to negotiate with their employer separate from the union.

One year after Janus, progress is being made towards allowing employees to work under the conditions they choose. However, much work is still needed to ensure employees are not being forced to associate with entities with which they do not wish to associate. Nevertheless, there are still many public employees who are unaware of what their rights are in the workplace under Janus.

What’s next for workplace freedom?

What’s next for workplace freedom?

Three employees of Kent State University on Monday, April 29 filed suit against the University’s Board of Trustees and the Association of Federal, State, County, and Municipal Employees (AFSCME) Council 8 because of the union’s refusal to recognize their resignation of membership.

In August 2018, Annamarie Hannay, Adda Gape and John Kohl, custodians for student residence halls at Kent State, resigned from their union expecting the automatic deduction of dues from their paychecks to cease.

The union refused to honor their resignation, maintaining that the plaintiffs could only resign within the union’s arbitrary opt-out window. The university has continued to deduct dues from the plaintiffs, who each pay almost $600 to AFSCME each year against their wishes.

The case filed on Monday by the Buckeye Institute and Liberty Justice Center seeks to reaffirm the First Amendment rights of public employees as established in the Supreme Court’s decision in Janus v. AFSCME last June. Unions engage in political speech, and as dues money is fungible, workers are compelled to support their union’s political speech whether or not they agree with it.

In Janus, the U.S. Supreme Court ruled that unions may not withhold dues or fees from employees’ paychecks without their affirmative consent, including agency fees. This should mean that any permission given to deduct dues before June 27, 2018 should be null and void because any affirmation would have been made before members’ were aware of their newly-recognized right to freely associate.

Kent State University’s refusal to acknowledge the plaintiffs’ request amounts to an unconstitutional assault on the free choice of public workers.

“I sent in my resignation to the union and Kent State in August 2018. Since then, not only has my resignation been denied, but I’ve also received confusing and contradictory messages from the union about when I could finally stop paying them money from every paycheck.”

Annamarie Hannay, Kent State University Employee and plaintiff

Per Janus, not only should public employees be allowed to resign from their union if they wish, they should not be forced to pay any dues to the union. One could conclude logically that given the freedom of workers to refuse to pay dues, they should also be allowed to forgo union representation if they wish. On the second page of the Janus decision, Justice Samuel Alito expressed skepticism of exclusive representation:

“Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union…”

This is the crux of another pending case relating to the First Amendment rights of public workers, Uradnik v. Inter Faculty Organization (IFO).

Uradnik will be argued in front of the U.S. District Court in Minnesota after the Supreme Court refused a request by the Buckeye Institute to hear it immediately. Kathy Uradnik, a professor of political science at St. Cloud University, is challenging her union — the Inter Faculty Organization (IFO) — and its rules that bar non-union faculty from serving on any faculty committee or even on the Faculty Senate. This scheme is currently written into the St. Cloud University faculty contract.

Ms. Uradnik is arguing that her First Amendment rights are being restricted because she is compelled to be represented by a union of which she has declined to join, and contends the current contract relegates her to second-class status among her colleagues because of her decision. A ruling in her favor could allow her and the University to negotiate wages and benefits independent of the union. This ruling would have implications for other public employees in Minnesota, as the IFO organizes multiple university faculty associations.

Of course, a union should not be forced to represent any worker that does not join its ranks, either. The principle applies both ways. Why should the union be forced to represent non-members? Would that be fair to those who gave their clear consent to become members and pay dues?

As these and other cases concerning the implications of Janus and the rights of public workers progress through the courts, expect to see these aspects of the First Amendment thoroughly explored. Between questions of opt-out windows, exclusive representation and the meaning of “affirmative consent” in determining membership, there is much to be answered as the legal relationship between public workers and unions continues to evolve.

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.

Maine law forces me to accept union misrepresentation

Maine law forces me to accept union misrepresentation

I am an associate professor at the University of Maine at Machias, where I have taught for 34 years. Until recently, I very proudly served as grievance officer for the Machias chapter of my union: the Associated Faculties of the Universities of Maine. I enjoyed serving AFUM and colleagues in that capacity.

However, I have since opted out of membership in my union because I could not get out of being associated with its state and national affiliates. I have ultimately had to make the difficult decision to sue for the right to speak for myself even now that I am no longer a member of the union. My first day in U.S. District Court is Wednesday in Portland.

Click here to continue reading Professor Reisman’s column as originally published in the Portland Press Herald.