Progressive Federalism in the Wake of Janus


Published May 22nd, 2019 - 05.22.1932


When the Supreme Court decided Janus v. AFSCME last year, the five-justice majority invalidated key provisions of collective bargaining agreements governing millions of workers across twenty-two states. Specifically, the Court held that such agreements could not obligate non-consenting public-sector employees to pay “agency” or “fair share” fees to the unions which represented them and negotiated on their behalf. This left public unions with a legal duty to provide services to covered employees—regardless of whether those employees actually paid for them. Many states responded by enacting policies to limit the effects of this “collective action problem of nightmarish proportions.” Encouragingly, recent data suggests that these policies may be working. Although union revenues have declined (due to lost agency fees), membership has either remained steady or increased.

Progressive states have significant flexibility to design laws which explicitly support public unions. The NLRA doesn’t apply to public employees, so these states can act as proverbial laboratories of democracy without fear of federal preemption. This post will survey current state-based responses to Janus and discuss their potential legal challenges. It will conclude with an argument for an untested solution—publicly funded unions.

Encouraging Union Membership

The most popular legislative response to Janus has been to make it easier for unions to recruit new members. Such regulations seek to amplify pro-union messaging while shielding employees from anti-union messaging. First, states have provided unions with greater access to public employees. New York, New Jersey, Washington, California, and Maryland require ongoing disclosure of new and existing employees’ contact information to their exclusive bargaining representatives. Many of these states further obligate public employers to facilitate paid, face-to-face meetings between new employees and union representatives. Second, states have made the related decision to restrict outside groups’ access to public employees. New York, California, New Jersey, and Rhode Island prohibit disclosure of employees’ contact information to any organization other than a certified or potential exclusive bargaining representative. California goes even further by prohibiting public employers from notifying outside groups about new employee orientations. Third, states like California and New Jersey bar public employers from discouraging union membership—New Jersey even requires violators to reimburse affected unions for lost dues. Altogether, such laws help employees decide whether the benefits of union membership outweigh those of free-riding as a nonmember.

Anti-union groups may claim that these laws violate their First Amendment rights. Under this argument, the states have created a limited public forum for the designated purpose of discussing union membership. By excluding disfavored speakers, states have engaged in impermissible viewpoint discrimination. This argument may seem persuasive, but these laws could also be characterized as regulations on government speech. The Court has repeatedly held that the Free Speech Clause has no application when the government speaks for itself—including when it “receives assistance from private sources for the purpose of delivering a government-controlled message.” Here, the government-controlled message is that public employees should be free to join unions. Under this view, the First Amendment lets states chose to deliver that message directly or with union assistance.

Reducing Membership Withdrawals

In addition to making it easier to join unions, some states set guidelines on the process by which public employees leave unions. New Jersey, Hawaii, Delaware, and Washington passed laws limiting the windows of time during which employees can revoke their union membership and terminate corresponding payments. For example, if public employees in New Jersey authorize their employer to deduct union membership dues from their paychecks, they can only rescind that authorization “during the 10 days following each anniversary date of their employment.” Unsurprisingly, several class actions have challenged these laws as contrary to Janus’s requirement that employees “affirmatively consent” to the payment of union fees. The plaintiffs argue that states cannot cabin employees’ exercise of their First Amendment rights to a few days each year. Moreover, the challenges assert that these new revocation terms were imposed without members’ consent.

Discouraging Free-Riding

Some states have taken steps to help unions make membership more attractive by conserving resources for the benefit of workers who actually pay for union representation. Although members-only collective bargaining remains controversial, states have been more receptive to giving unions the flexibility to reduce secondary services for nonmembers. Legislation in Rhode Island now allows police and firefighters’ unions to stop representing nonmembers in grievance and arbitration proceedings. Likewise, New York gives all public unions the option to exclude nonmembers from grievance representation and other members-only benefits. In response, the New York State United Teachers union revoked life, eye, and dental insurance coverage for nonmembers. These changes may not completely solve the collective action problem created by Janus, but they could help mitigate its effects.

States can defend policies allowing members-only secondary services using the text of Janus itself. The majority dismissed arguments that its holding would create a free-rider problem by explaining that, “Individual nonmembers could be required to pay for [representation in disciplinary matters] or could be denied union representation altogether.” Taking the Court at its word, public unions would be within their rights to confine gratuitous services to the collective bargaining process.

Publicly Funded Unions

The simplest solution would be for public employers to reimburse unions for the costs of collective bargaining directly. Before Janus, collective bargaining increased public employee wages by about 17%, and agency fees reduced this premium by about 2% (resulting in a 15% net gain). The 2% agency fee appeared as a paycheck deduction, but employees never actually “owned” that money because it was always promised to the union. States could achieve the same substantive outcome by skipping that intermediate step and paying the union directly. If agency fees bypass employees—and their corresponding speech rights—then the Janus holding would become irrelevant. Legislators in Oregon, Hawaii, and New York have embraced this reasoning and proposed the creation of public employee collective bargaining funds. These proposals have been met with intense partisan criticism, despite the fact that state expenditures and employee take-home pay would mirror the pre-Janus regime. Political difficulties notwithstanding, states should consider this option more seriously. First, the conception of agency fees as union property rather than employee property sidesteps the constitutional issue and precludes the Court from further “weaponizing the First Amendment.” Second, unlike existing efforts to nudge employees toward union membership, this strategy would guarantee funding for collective bargaining. Finally, publicly funded unions are a more intellectually honest response to Janus. Progressive states have made a policy decision to support public employees’ ability to form unions. Instead of manipulating background incentive structures to encourage employees to fund unions, wouldn’t it make more sense for states to do so directly?

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