This summer marked the one-year anniversary of the U.S. Supreme Court’s Janus v. AFSCME decision, which ruled that public employees have a constitutional right to quit their union and stop paying dues. This week is National Employee Freedom Week, a time to celebrate workers’ rights such as these. Yet in many states, governors, attorneys general and lawmakers are undermining public employees, making it harder for them to exercise their constitutional rights. That’s why, even a year after the monumental Janus decision, many public employees are still forced to fight for their freedom in the courts.
The Supreme Court’s ruling in Janus was simple: Public employees, who long had been required to pay union dues or fees — usually hundreds of dollars annually — no longer need to pay a union to keep their job. The ruling affects some 5 million state, municipal and public school employees in the 27 states without right-to-work laws.
Union officials did not even wait for the Supreme Court to issue the Janus ruling before asking politicians to circumvent and blunt it. In New Jersey, the legislature passed the Workplace Democracy Enhancement Act before the Janus ruling even came down. The law says that public employees can resign from their union only during a 10-day window immediately following their hire date. This creates an administrative nightmare, since most every employee has a unique hire date.
In the days after the ruling, several attorneys general made it clear that employees who wished to leave a union should not expect help from the highest legal officer in the state. Massachusetts Attorney General Maura Healey, for example, wrote an advisory listing all the benefits unions would continue to enjoy, including government payroll deductions for union dues. Several other attorneys general issued similar interpretations, using identical or similar language.
And according to Ballotpedia, 31 state legislatures have considered 101 bills that touch on public-sector unions.
Washington Gov. Jay Inslee signed a bill that prohibits employees from suing the union for dues paid before the Janus ruling. The bill makes it easier for unions to sign members, allowing for “recorded voice authorization,” while creating requirements for employees who wish to leave. The Massachusetts House just approved a bill that empowers unions at the expense of employees’ personal privacy and establishes barriers to opting out. In Oregon, a pending bill would bypass the Supreme Court by requiring public employers to pay the unions a percentage of their payroll.
One year in, has the Janus decision had that much of an impact on workers? Government reports are giving us some clues. In January, the U.S. Bureau of Labor Statistics reported that the percentage of workers who are members of a union fell to 10.5 percent in 2018, down by 0.2 percentage points from the year before.
Federal filings from labor unions provide more information. The National Education Association reported a 2.8 percent drop in the number of active workers paying dues or fees. The American Federation of State, County and Municipal Employees (AFSCME) reported an 8 percent drop, and the Service Employees International Union (SEIU), a 5.2 percent decline. These three unions, the largest public-sector unions in the nation, have witnessed a decline of some 279,000 workers. Conservatively estimating, that represents at least $181 million in dues or fees.
According to public records obtained by the Mackinac Center, California has experienced a 28 percent drop in the number of state workers paying dues or fees to a union (49,000 workers); Maryland is down 32.3 percent (11,000 workers); Pennsylvania down 20 percent (13,000 workers) and Missouri, 37.4 percent (1,500 workers).
Several factors could speed up the exodus of public employees from union membership. First, if workers prevail in the various lawsuits filed against state- and union-imposed restrictions on worker rights, there will be fewer hurdles in the way of employees who want to leave. Second, relying on language in the Janus ruling, governors or legislatures could impose “affirmative consent” requirements, making unions prove that members knowingly decided to join. The Mackinac Center’s Workers for Opportunity team has briefed policymakers and analysts in 15 states on this policy.
Last year, the Supreme Court affirmed that public employees need not pay a union to keep their jobs. Those who have left a union often have done so in the face of union hostility and state-sponsored obstacles. Thanks to their efforts, the decision could be easier for others in the years to come.
Michael J. Reitz is the executive vice president of the Mackinac Center for Public Policy in Midland, Mich. Follow on Twitter @MackinacCenter.