Research & Commentary: How States Are Preparing for SCOTUS’ Janus Decision

Published June 19, 2018

The U.S. Supreme Court will soon release its decision on Janus v. American Federation of State, County, and Municipal Employees (AFSCME). This ruling could give all state workers the choice of whether or not to join a union, forbidding rules that require workers to join a union as a condition of employment.

The legal precedence under scrutiny in Janus v. AFSCME was established in Abood v. Detroit Board of Education (DBE) more than 40 years ago. In Abood v. DBE, the court determined teachers do not have the right to fully opt out of union membership while employed in a public school system where other teachers are unionized.

In 2016, Illinois Department of Healthcare and Family Services employee Mark Janus challenged forced unionization, arguing the union violates his rights to free speech and association.

Many observers, including public employee union leaders and state legislators, are preparing for the overturn of Abood v. DBE. A decision in favor of Janus would significantly affect the six million state and local employees across the country who are public employee union members. If the ruling falls against AFSCME, it would be important for all public employees to understand the new requirements regarding union membership and to be granted enough time to make an informed decision about their union membership status.

In an article for The Heartland Institute’s Budget & Tax News, John Eastman, founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, argues a ruling in Janus’ favor would restore government employees’ free-speech rights. Eastman also says although public and private unions are fundamentally different, past rulings have ignored these distinctions. Janus v. AFSCME could be different because the case relies on delineating these variances.

In anticipation of the upcoming ruling many states have passed new laws, either strengthening unions or making it easier for state workers to opt out without penalties. New York recently initiated legislation that would empower unions and undermine states workers’ rights. Under current New York law, government workers who voluntarily join a union have been allowed to withdraw from having to pay the union dues deduction “at any time” by notifying their employer. A new bill would terminate the “opt out” clause and only allow workers to withdraw their dues “in accordance with the terms of the signed authorization.” The Empire Center, a nonpartisan think tank headquartered in Albany, New York warns the proposed bill could force state workers to commit financial support to a union for up to 11 months.

Another state following New York’s example is Washington State, where a new law was signed in March that mandates state collection of dues for public sector unions. And another bill in Washington would prohibit public employers from informing employees of their ability to avoid having to pay a union. Both bills reinforce the status quo and could be challenged in courts.

Thankfully, some states are not following New York and Washington’s anti-worker legislation. For instance, Missouri has taken several steps toward making it easier for public and private workers to opt out of union membership. A new law passed in June requires unionized government employees to vote every three years whether they want their union to continue to represent them. It would also require all state workers to decide each year if they want union dues to be deducted from their earnings. This is a reform referred to by supporters as “paycheck protection.”

There are steps states can take to ensure worker rights, regardless of what the Supreme Court rules in Janus v. AFSCME. States can implement paycheck protection laws, and give workers control over their wages. States can also implement an opt-in standard for union participation, where a new worker has to choose to be in a union when they start a new job, instead of choosing to opt out. If ending the current opt-out standard is not possible, states can improve the process by requiring an opt-out only once per job or when a worker changes jobs, instead of having to wait until the end of a 12-month period.

State legislators should also ensure state employees are given ample time to make their decision whether to opt out. Unfortunately, some states have forced workers to decide their union status before they have enough time to consider all their options. It is crucial that all new state employees know their full range of options when they begin employment. State lawmakers should make certain public employees are notified when they are hired of their right to choose whether to join a union.

The following documents examine the Janus case and other right-to-work issues in greater detail.

The Janus Stakes
Ken Girardin of the Empire Center for Public Policy examines the potential effects of a ruling in favor of Janus in Janus v. American Federation of State, County, and Municipal Employees. “As shown in this report, if the Supreme Court sides with the plaintiff in Janus, New York state government and New York City municipal employees who have already indicated they would rather not belong to unions would save $53 million a year in dues-like fees. Extrapolating to other levels of local government, school districts and public authorities, the immediate savings for all New York public-sector workers opting out of union membership could come to more than $110 million—and could grow from there,” wrote Girardin.

Supreme Court Hears Case of Forced Union Dues
Leo Pusateri writes in Budget & Tax News about the Janus v. AFSCME case and how it could affect state workers and public sector unions. 

Lawmakers Keep Moving Union Bills to Work Around U.S. Supreme Court Decisions
Erin Shannon of the Washington Policy Center examines legislative efforts in Washington State to circumvent a ruling in favor of worker rights in the Janus v. AFSCME case.

The Janus Case Could Mean the Restoration of Government Workers’ Constitutional Right to Free Speech
Mailee Smith of the Illinois Policy Institute examines the possible outcomes of the Janus v. AFSCME case, what each outcome means, and what would and would not change under the potential rulings the Supreme Court could hand down. 

The Myth of Public-Sector Unions’ ‘Free Rider’ Problem
Trevor Burrus and Reilly Stephens examine the common “free rider” arguments against right to work and discuss how unions misread federal law. Burrus and Stephens say unions might actually become more efficient as members-only organizations.

The Janus Case and the Future of Teachers Unions
Nat Malkus of the American Enterprise Institute discusses the possible future effects on teachers unions of a pro-Janus ruling.

Key Exchanges from Major Union Case at the Supreme Court
Elizabeth Slattery of The Heritage Foundation outlines several arguments made by both sides of the Janus case, the questions asked by the justices, and what these arguments will mean for the eventual decision.

Public-Sector Unions Anticipate a Loss before the Supreme Court
Patrick Wright writes in The Hill unions are anticipating a loss in Janus v. AFSCME and discusses how they are preparing for a new reality in a post-Janus America.

Did Right-to-Work Laws Impact Income Inequality? Evidence from U.S. States Using the Synthetic Control Method
Jeffrey Jordan, Aparna Mathur, Abdul Manasib, and Devesh Roy of the American Enterprise Institute examine right-to-work laws in four states—Idaho, Louisiana, Oklahoma, and Texas—and they found right-to-work laws have no impact on economic inequality.

Right-to-Work Laws: Liberty, Prosperity, and Quality of Life
Economist Richard Vedder documents the positive impact of right-to-work laws. He concludes, “Americans generally prefer freedom to coercion, high incomes to low ones, and individual decision making to collective resolution of issues. For these reasons, they generally do not like laws that constrain their labor market behavior and force them to join collectives of other workers to negotiate their wages and working conditions.”


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