While Kansas still hasn’t reacted to the 2018 U.S. Supreme Court Janus decision, Texas is making it clear that public employees should not be charged union dues without their consent.

The Janus decision was about whether public employees can be forced to subsidize a union. The Court held that even if someone chose not to join a union, they couldn’t be forced to subsidize the union because it violates their free speech rights.

The court also ruled that government employers must have “evidence of affirmative consent” to withhold dues from an employee’s paycheck.

According to  F. Vincent Vernuccio, Senior Fellow with the Mackinac Center for Public Policy in a February interview, “Janus essentially had an opt-in provision saying that public employees should have the ability to opt-in to paying union dues and for employers to collect those dues, they need evidence of affirmative consent.”

The opt-in ruling also means employees must be able to revoke their consent whenever they wish.  Kansas statute now says dues withholding authorizations must be in effect for at least six months, and the KNEA teacher union only allows teachers to leave in August.  These limits on public employees’ ability to opt-out were contested in Kansas legislative hearings earlier this year.  Proponents of Janus-compliant legislation said constitutional rights (to opt-out of subsidizing a union) cannot be statutorily or contractually restricted.

“There is no clock or calendar on exercising your constitutional right,” said Vernuccio.

Texas Attorney General Ken Paxton issued an advisory opinion declaring that certain Texas statutes are unconstitutional under Janus, as the state is relying on unions and “other employee organizations” to obtain the required consent before withholding dues from employees’ pay.

Paxton says this is insufficient.

“The organizations serve as a middleman, receiving the authorizations from employees and forwarding them to the state agencies, which make the requested payroll deductions,” Paxton wrote. “In doing so, state agencies appear to have no independent method of confirming that an employee knowingly and voluntarily consented to the payroll deduction without any coercion or improper inducement.”

Paxton said that “at a minimum” the state should be ensuring the deductions truly are voluntary, by — for example — having the deduction forms submitted to directly to the appropriate agency by the employee, rather than the union.

Workers for Opportunity, a nonprofit specializing in workplace freedom issues owned by the Mackinac Center, said in a column the Texas opinion was welcome.

“Public employees cannot be forced to support inherently political organizations like government unions,” said Steve Delie, legal counsel and director of Workers for Opportunity. “We applaud the Texas Attorney General in this clear and correct reading of the Janus case. This policy will provide the proper protection of public employees’ constitutional rights.”

WFO also noted Texas is the second state to issue a clarifying opinion on Janus, following Alaska Attorney General Kevin Clarkson in August 2019. Alaska Gov. Mike Dunleavy immediately followed with an administrative order to implement Attorney General Clarkson’s opinion into practice.

Kansas had two bills this session that would have brought the state into compliance with Janus — and both made it out of committee — but neither Chamber had a chance to vote on the bills due to the COVID-shortened session.

Senate Bill 361 and House Bill 2586, which were substantially similar, would have given public employees the ability to immediately cease payment of dues to a labor union whenever they choose. The bills also require an affirmative annual opt-in to join a union, and an annual reminder notice informing public employees of their constitutional right to leave the union at any time.

In February, Vernuccio said in addition to the First Amendment issues, the opt-in requirement is “simply good bookkeeping.”

“It’s very simple, it’s good bookkeeping, and it makes sure that those public employees that want to pay union dues can and will, but that those employers have that evidence of affirmative, consent — clear and compelling evidence of affirmative consent — that was required by the Janus decision.”

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