It is back-to-school time for teachers and education support professionals (ESPs), but is it back to the union, as well? At the end of June, the U.S. Supreme Court ruled that forcing public employees to fund a union as a condition of employment violated their First Amendment rights. That long-anticipated decision in Janus vs. AFSCME had immediate financial consequences for Minnesota's public-sector unions and some employees.
Across Minnesota, government employers stopped deducting "fair-share" fees from the paychecks of employees who had previously exercised their right not to join the union. That fee was only supposed to cover the cost of collective bargaining; it was 85 percent of full dues. But the high court said that collective bargaining itself was political in nature, and thus employees could not be forced to fund it. People like Mark Janus who had exercised their right not to associate with their workplace union got a pay raise.
But what about employees who have been paying full union dues? Was there anything in the Janus decision that addressed them?
The court made it clear that employers and unions had to have the affirmative consent of employees before dues are deducted. Justice Samuel Alito, writing for the majority, said that "states and public-sector unions may no longer extract agency fees from nonconsenting employees" and that "[n]either 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."
The decision establishes an opt-in procedure for "nonmembers … waiving their First Amendment rights, and such a waiver cannot be presumed" (emphasis added). Further, Alito wrote, "[r]ather, to be effective, the waiver must be freely given and shown by 'clear and compelling' evidence."
This language is the equivalent of the court shouting from the bench. It is a warning to unions and employers not to go about business as usual. The court flipped the decades-old default from employees "opting out" of the union to employees "opting in" to the union. This is because Janus involves speech rights under our Constitution. Any interference with those rights must meet the toughest legal standard: strict scrutiny.
But what this means in practical terms is still being debated. Unions are arguing that the Janus decision had no effect whatsoever on employees paying union membership dues as of June 27, 2018. And furthermore, that union members are bound by whatever terms the union imposed on them unilaterally for exiting union membership.
But employees across the country are taking the position that when they signed a union card, they were waiving a right they did not know they had until Janus was decided, or that they signed union cards under duress. The choice of joining or not joining but paying 85 percent of union dues, losing membership benefits and the right to vote on the contract they paid to have negotiated and maybe even getting hassled by the union, was no choice at all.
