Janus v. AFSCME: “Let Me Out”
In an upcoming US Supreme Court decision, Janus v. AFSCME will once again put the issue of union fees, as a condition of employment, back on the table. If Mark Janus wins his case against the American Federation of State, County and Municipal Employees, millions of government workers across the country will no longer be forced to pay union dues that violate their First Amendment right. State Policy Network’s Vincent Vernuccio stated, “If the Court rules in his favor, all government employees could essentially be right-to-work.” It is important to highlight that this case does not affect private sector unions and is limited to the public sector.
This same issue was heard by the Supreme Court in 2015 during Friedrichs v. CA Teachers Association. However, a split decision after Justice Scalia’s death left the case unresolved. Both the Friedrichs and Janus cases challenge the precedent set by Abood v. Detroit Board of Education in 1977. The recent appointment of Justice Neil Gorsuch will finally provide a decision on whether this precedent will be overturned or not.
A win for Mark Janus means 22 states would expand the right to free speech to all of their government workers. The other 28 states already have right-to-work provisions in place through state law, although implementation is waiting on a referendum vote in Missouri. In too many cases, public sector unions hold political positions that are not necessarily shared by their members. Right-to-work advocates, and many union members themselves argue that employees are not actually represented even though they are required to pay dues to keep their job.
Pro-union leaders refute the right-to-work argument by referring to the “free rider” problem in which members who do not pay into the union still receive the benefits of being part of the union. However, this issue is addressed through the provision of Worker’s Choice. Vernuccio explains this as freeing “unions and employees from the forced relationship, allowing workers to represent themselves in a dispute.” In other words, as Mark Janus himself puts it, “Let me out.”
Worker’s Choice will become even more important for right-to-work advocates if legislatures continue to take actions on sidestepping the court’s potential decision. Creating tighter opt-out windows, new-employee union presentations, and requiring employers to supply private information on employees to unions, are all tactics being used by lawmakers to try to mitigate the fallout of a decision to Janus’s favor.
Union leaders and some lawmakers are concerned about the financial blow that unions will take with right-to-work nationwide. Killen and Jedynak of The Mackinac Center and Americans for Prosperity report that 20 percent of public employees may stop paying fees, which would cut union revenue by $1,000 per person per year. On the other hand, right-to-work states have seen increased union membership. SPN cites the Bluegrass Institute reporting a 1.3 percent growth in right-to-work states and a 9% decrease in non-right-to-work states from 2005 to 2015. In addition, 2015 saw six out of ten states with the biggest increases in union membership as right-to-work states.
Worker freedom has been on the rise in recent years and a decision in Janus v. AFSCME could allow government workers in every state to enjoy the constitutional right that workers in 27 states already experience.