The Attorney General of Alaska, Kevin Clarkson, recently issued an opinion about how the state needs to adjust its practices related to public employee union dues collection in light of the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME.
The Freedom Foundation has prepared recommendations for the proper implementation of the Janus decision and has initiated litigation on behalf of employees against public employers who allow unions to flout the Constitution.
Among the Alaska AG’s recommendations that jibe with Freedom Foundation’s legal analysis are these:
- Public employers must independently determine if dues deductions are authorized.
“By ceding to the unions themselves the process of eliciting public employee’s consent to payroll deductions of union dues and fees, and unquestioningly accepting union-procured consent forms, the State has no way of ascertaining—let alone by “clear and compelling evidence”—that those consents are knowing, intelligent, and voluntary. The State has thus put itself at risk of unwittingly burdening the First Amendment rights of its own employees.
“A course correction is required. To protect the First Amendment rights of its employees, the State must revamp its payroll deduction process for union dues and fees to ensure that it does not deduct funds from an employee’s paycheck unless it has ‘clear and compelling evidence’ of the employee’s consent.”
- Employers must see evidence that the employee waived his or her right to refrain from compelled speech.
“The Janus decision prohibits a public employer from deducting union dues or fees from a public employee’s wages unless the employer has ‘clear and compelling evidence’ that the employee has freely waived his or her First Amendment rights against compelled speech.”
- Employers may not rely on the union to secure the authorization.
“First, having ceded the power to collect payroll deduction authorizations to the
unions themselves, the State has no way to ensure that its employees are being told exactly what their First Amendment rights are before being asked to waive them.”
“Second, because the unions control the environment in which the employee is asked to authorize a payroll deduction, there is no guarantee that an employee’s authorization is ‘freely given.’”
“The importance of assuring that an employee gives knowing consent, and the risk of obtaining uninformed waivers under the current state payroll deduction system, is all the more apparent when unions add specific terms to an employee’s payroll deduction authorization, like making the payroll deduction irrevocable for up to twelve months.”
- Employers must adopt specific remedies.
“. . . the State must require that the employee provide that consent directly to the State”
“. . . the State should require that an employee regularly has the opportunity to (1) opt-in to the dues check-off system and provide their consent to waive their First Amendment rights by providing funds to support union speech; and (2) opt-out of the dues check-off system where the employee determines”
“. . . the State should also provide for a regular “opt-in” period, during which time all employees will be permitted to decide whether or not they want to waive their First Amendment rights . . . Requiring consent to be renewed on an annual basis would ensure that consents do not become stale . . . and promotes administrative and employee convenience by integrating the payroll deduction process with other benefits-elections employees are asked to make at the end of every calendar year.”
Though it took more than a year, the state of Alaska should be congratulated for recognizing the supreme importance of Constitutional rights, government unions’ financial incentive to disregard these rights and adopting a course of action based on a correct understanding of the Janus decision.
Upon receipt of the opinion, Alaska Gov. Michael Dunleavy said, “In the coming days and weeks, my administration will be working to ensure the state is in full compliance of the law and that Alaskans are informed of their rights.”
If Washington, Oregon or California had leaders who put the law and the rights of workers ahead of the financial interests of their political contributors, the Freedom Foundation would not have to litigate to protect public employees from exploitation.
