Prior to the landmark Supreme Court decision in Janus v. AFSCME, government unions were already devising ways to keep members and dues flowing. In a previous post, I discussed some of the ideas that the National Education Association put forth to lessen the impact of a potential Supreme Court decision that ruled forced union dues unconstitutional.
Ultimately, forced union dues were struck down and blue states started introducing bills to minimize the impact of Janus by limiting workplace choice and granting labor unions more privileges. Some public employers even refused to comply with the Janus ruling.
California was quick out of the gate. Even before Janus, in the summer of 2017, the California legislature passed Assembly Bill 119, which provides union access to new public employees. As I previously wrote:
“This enables unions to make their pitch to a ‘captive audience,’ a practice unions condemn employers for conducting, while prohibiting opposing views at the meeting. Many times these orientations are mandatory to attend. In Washington State, the Service Employee International Union misled home care providers at an orientation meeting that joining the union was mandatory.”
In addition, AB 119 also forces public employers to hand over public employees’ personal information to the union. This policy does not permit unwilling employees to opt-out of sharing their private contact information. A similar rule was put into practice at the federal level. Yet, even the pro-union National Labor Relations Board under President Obama admitted that workers’ private data could be used to “harass, coerce, or rob employees.” Further, unions have been known to coerce and threaten workers to join the union. The states of Maryland, New Jersey, New York, and Washington have all passed similar legislation that either requires employee captive audience meetings or forces public employers to hand over workers private information.
To protect unions from having to reimburse non-members for forced union dues, California passed Senate Bill 846. This law offers government unions “complete defense” against lawsuits that seek back dues paid before the Janus ruling. However, this only protects unions in state court. Already, there is one case that is working its way through federal court that is seeking to win back around $100 million in forced union dues for California public employees.
California is not alone in passing legislative Janus workarounds. In Delaware (House Bill 314) and Hawaii (HB1725 HD2), legislation was passed that changed how public employees may opt out of union membership. In Delaware, it created a default setting on how and when an employee may opt out of the union. If not set by a collective bargaining agreement, an employee may only opt out during a “period 15 to 30 days before the employee’s anniversary date of employment, effective on the employee’s anniversary date.” Similarly, Hawaii’s law limits opt outs to a 30-day window.
Despite the passage of these laws, which limit when an employee may opt out of union membership, they will likely be found illegal. Union members in states that, prior to the Janus decision, required non-members to pay agency fees, or forced union dues, should now have the right to immediately stop paying dues to the union. This is because these employees were faced with a now-unconstitutional choice—join the union and pay full membership dues or pay agency fees. In essence, employees could not have waived rights that they did not know they had. This makes signed dues-authorization forms dated before the Janus decision invalid. In these states, which includes Hawaii and Delaware, the union must collect new signed forms that authorize dues payments, which are dated after the Janus decision on June 27, 2018.
Later this week, I’ll take a look at bills that have been recently introduced with the goal of diminishing the Janus decision and to prop-up government unions.
Trey Kovacs is a policy analyst with the Competitive Enterprise Institute, a public policy non-profit group in Washington, D.C.
Editor's Note: This piece was originally published by the Competitive Enterprise Institute.