Freedom Foundation

Opt-out schemes should be declared unconstitutional

On Feb. 5, Freedom Foundation attorneys filed an amicus brief with the U.S. Supreme Court in Riffey v. Rauner encouraging the Court to review the case, brought by an Illinois in-home caregiver, and squarely address whether opt-out dues collection schemes violate the First Amendment rights of workers.

In 2014, the U.S. Supreme Court held in Harris v. Quinn that Illinois caregivers like Pamela Harris and Theresa Riffey could not be forced to pay union fees as a condition of receiving Medicaid reimbursements for their work. Harris has served as the primary catalyst for much of the Freedom Foundation’s work ever since.

Freedom Foundation staffers have worked tirelessly to inform caregivers in Washington, Oregon, and California about their rights under the Harris ruling, much to the annoyance of the unions and their allies in government.

They’ve waged a ferocious battle but, in direct response to the Freedom Foundation’s outreach efforts, 60 percent of Washington’s home-based childcare providers have learned of and exercised their right to stop funding SEIU 925.

Forty percent have done so in Oregon.

But Washington’s in-home caregivers (individual providers) have not enjoyed the same benefits from the Harris decision. Why? Because their union, SEIU 775, and their governor (their employer “solely for the purpose of collective bargaining”)  have systemically undermined caregivers’ Harris rights – primarily by use of an “opt-out” scheme.

After Harris, the union and governor quickly rewrote their existing labor contract, removing the agency fee requirements Harris declared unconstitutional but replaced them, instead, with a creative and unethical alternative.

Overnight, they changed the definition of “union member” to mean simply anyone paying union dues. They also added contract language that declared everyone a full union member until or unless they decide to navigate the intentionally confusing opt-out process.

Intuitively, everyone understands that a “member” is someone who affirmatively decides to join a given organization by agreeing to membership, by signing a membership card, etc. But in the money-centric “union-verse,” words are malleable, and ultimately mean whatever the union bosses believe will improve their bottom line.

Thus, caregivers who were paying compulsory agency fees but had never joined the union were quite suddenly re-classified as full-fledged union members. The “agency fee” was rechristened a “membership fee” and overnight much of the Harris damage was blunted.

Even better, most caregivers were none the wiser.

The union-dominated Washington Legislature is now attempting the same sleight-of-hand for all of Washington’s full-fledged public employees. The bill, SSB 6296, represents unions’ preemptive strike against the U.S. Supreme Court case of Janus v. AFSCME,  which could impose “right-to-work” protections for all public employees, nationwide.

This brings us back to Riffey and the Freedom Foundation’s amicus brief. After Harris, the plaintiffs in that case were sent back to the U.S. District Court with a big win.

Importantly, Harris did not declare that the agency fees previously seized were lawfully seized. On the contrary, the court made clear that it refused to extend the cases that allow compulsory fees to partial-public employees like Pamela Harris.

Consequently, when the case went back down to the U.S. District Court, the remaining plaintiffs sought to certify a class and reclaim the $32 million of agency fees unconstitutionally seized from nonmember caregivers.

This seems appropriate, and the Supreme Court held that the agency fee seizures were illegal – so the union should have to pay the money back, right?

Unfortunately, the court balked. A U.S. District Court judge held that he would not certify a class because there may have been many agency fee payers who were happy to be agency fee payers. The only appropriate class, he concluded, was one composed of those caregivers who had affirmatively objected to paying full union dues and asked to pay the lower agency fee.

This reasoning fails to account for those who consciously decided never to sign a membership card and paid agency fees only because they had to (before Harris). Applied to the present situation in Washington and other states with post-Harris opt-out schemes, this reasoning fails to account for those who consciously decide not to join the union and fairly assume they will not have to pay any union dues or fees.

The lower courts in Riffey assumed that only those who affirmatively objected to paying union dues have suffered a recognizable First Amendment injury and can recover. This just doesn’t square with reality. In other words, it’s bad reasoning.

It’s also unconstitutional reasoning. Being forced to fund union speech violates a fundamental right, and it is a longstanding principle that courts do not assume acquiescence in the loss of fundamental rights.

Yet, courts around the country have sided with the Riffey courts, permitting abusive opt-out schemes to persist in states – like Washington – where union bosses are much more powerful than elected officials.

The Supreme Court should take the case. It should rule unequivocally that opt-out schemes are unconstitutional (it likely already has – please read the brief, linked above). Then the courts should certify the class, and unions in Illinois, Washington, Oregon, California and other states should be forced to repay the money they have wrongfully taken from workers.

If public employees wish to belong to a union, they have that right. But unions should be forced to obtain workers’ permission before they start skimming from their wages.