February 26, 2024

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Unions oppose employee rights with false claims re: Janus

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Several labor unions opposed legislation to ensure public employees’ rights under Janus v. AFSCME was opposed by unions this week and made several false and deceptive claims in the process.

The proposed legislation — Senate Bill 511 — is in response to the United States Supreme Court’s 2018 Janus decision, in which the Court ruled that it is a violation of public employees’ constitutional rights to compel membership in and payment to a union as a condition of employment.  The Court’s opinion is based on its determination that everything a public employee union does is “inherently political.” Private-sector unions are not affected by Janus

SB 511 would provide that public sector employees such as teachers or firefighters must annually authorize their employer in writing to deduct union dues from their paycheck and that their employer then email the employee in question to verify the authorization. The bill further provides that employees may leave the union at any time and cease withholding of dues upon written request.

Sarah LaFrenz, president of the Kansas chapter of the American Federation of Teachers, in written testimony said, “this bill is all about the government telling people how to spend their hard-earned paychecks and mandating anti-union propaganda. So much for giving people the freedom to decide for themselves.”

Nothing in the legislation suggests how teachers should spend their money.  SB 511 ensures that public employees have the right to stop paying union dues whenever they wish.  AFT-Kansas doesn’t publish its membership application online, but the Kansas chapter of the National Education Association only allows members to withdraw in August.  Other testimony recounted teachers’ requests to resign and stop paying dues at other times were denied by the union.

Kansas Policy Institute CEO Dave Trabert testified in support of SB 511, noting that such denials are arguably unconstitutional in the wake of Janus. 

“Constitutional rights cannot be subject to a clock, a calendar — they’re absolute,” Trabert said. “So that needs to be changed.”

The Janus opinion states, “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”  Accordingly, once a public employee revokes consent to withhold dues, Trabert argues, the employee must be allowed to resign.

Existing Kansas law requiring dues withholding authorizations to be in place for at least 180 days is also arguably unconstitutional in the wake of Janus.

Kansas AFL-CIO Executive Vice President John Nave characterized notifying employees of their constitutional right as an attempt to “harass, infringe, and restrict hard-working public-sector employees.”  The notification requirement under SB 511, however, is similar to others that are not opposed by the AFL-CIO, like the right to file for unemployment or workers’ compensation.  The Janus notification would be emailed annually to employees, whereas unemployment and workers’ comp notices must be prominently posted at the place of work.

Vincent Vernuccio, testifying in support of SB 511, said, “ensures that public employees are informed about their First Amendment right to choose whether to pay union fees and further allows them to exercise this right at any time. This right is guaranteed to them under the U.S. Constitution and recognized by the United States Supreme Court’s
decision in Janus v. AFSCME.”  Vernuccio is an attorney and labor policy senior fellow with Workers for Opportunity, a national project of the Mackinac Center for Public Policy.

Attorney Jake Miller with the Working Kansas Alliance alleged that Janus does apply to Kansas and other right-to-work states, but he offered nothing to substantiate his claim. To the contrary, the U.S. Supreme Court made no such determination, and Miller cited no court rulings under which constitutional rights only apply in some states.

Miller further argued that there’s no evidence of anyone in Kansas being denied the opportunity to leave a union at will because there have been no court cases, despite testimony to the contrary.  The absence of court cases is also deceptive because many employees fear retaliation from their employer.

Here’s another deceptive claim from Miller.  In objecting to employees being able to leave a union whenever they wish, he says the accepted standard dues withholding for federal employees is one year.  That was the case pre-Janus, but no longer.

The Federal Labor Relations Authority in 2020 rescinded that policy.  FLRA changed its interpretation of federal labor law to allow employees to cancel their union dues at any time, provided it has been at least one year since they first elected to join a labor group.

After all this, Miller said proponents of the bill were not being honest, which drew a sharp rebuke from Committee Chair Renee Erickson.

Today is the last day for committee work in Kansas, making progress on protecting the constitutional rights of public-sector employees unlikely again this year.

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