With a Few Exceptions, States Dawdle on Shielding Employee Rights

After two years, Michigan civil servants got the freedom to opt out of union dues and fees.

By Stephen Delie
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The skyline of Detroit, Oct. 23, 2013.

PHOTO: REBECCA COOK/REUTERS
It has been more than two years since the Supreme Court ruled that government labor unions must obtain employees’ explicit approval before taking dues money or fees out of their paychecks. Yet only recently have a small number of states begun to implement the logic of Janus v. Afscme. Michigan has now gone the furthest to ensure worker freedom.
Credit goes to the Michigan Civil Service Commission, a four-member body established by the state constitution that oversees working conditions for state employees. The commission ruled on July 13 that unions must obtain workers’ signatures annually before taking a chunk of their income. Some 48,000 state workers now have the ability to decide every year whether union membership is right for them. The rule puts a stop to automatic withdrawals of union dues and agency fees through the public payroll system, ending government complicity in—and subsidies for—union operations.
Michigan’s decision squares with the Janus ruling, in which the Supreme Court held that government employees must “clearly and affirmatively consent before any money is taken from them.” Without “clear and compelling evidence”—such as the annual signature that Michigan now requires—government unions can’t claim to respect employees’ First Amendment rights.
The Supreme Court’s ruling is straightforward, yet very few states have moved to implement it. It wasn’t until August 2019—14 months after Janus—that a state stepped up to put the decision into effect. That’s when Alaska Attorney General Kevin Clarkson issued a legal opinion arguing that the state wasn’t in compliance with the Supreme Court’s decision. Gov. Mike Dunleavy subsequently ordered the state to create a system for public employees to opt out of union dues and agency fees deductions.
It took another eight-plus months for a second state to join the action. In June, Texas Attorney General Ken Paxton issued an advisory opinion finding that it’s no longer enough for government workers to have signed a one-time dues-deduction form. The opinion urged the creation of a yearly authorization form, which the state Legislature could enact as early as January 2021.
Also in June, Indiana Attorney General Curtis T. Hill Jr. issued an opinion. Public employers must annually collect “clear and compelling evidence that an employee has voluntarily, knowingly, and intelligently waived his or her First Amendment rights and consented to a deduction from his or her wages,” he wrote. Like Texas, Indiana is now waiting for legislative action to turn this opinion into law.
Unsurprisingly, government-employee unions are fighting these efforts. The Alaska rules are tied up in court. If their rhetoric is any indication, Michigan public-employee unions may also be preparing to file suit to block the Civil Service Commission’s ruling. In recent weeks they have called the ruling “a tool for eliminating public unions,” a “discriminatory, illegal act” and “unconstitutional.” Yet the whole point of the rule is to uphold government employees’ constitutionally guaranteed free speech rights. 
Michigan union leaders are also pointing to the state’s right-to-work law, enacted by then-Gov. Rick Snyder in 2012, as proof that union members already have enough rights. So, irony of ironies, government unions are now defending a law that they spent millions of dollars trying to defeat.
Unions may be worried that the Civil Service Commission’s ruling could result in the loss of membership, income and political power. The right-to-work law has already led to a mass exodus of union members. Before Mr. Snyder got right-to-work passed, Michigan’s public-sector employees would lose their jobs if they didn’t pay union dues or agency fees. Now, while nearly 34,000 workers fall under a collective-bargaining agreement, only about 26,000 are having dues withdrawn—meaning a quarter of Michigan’s government union members have opted out. Five state unions have lost between 16% and 31% of their membership, costing them millions in yearly revenue.
Steeper declines are likely if government workers are given the chance to opt in or out of union membership every year. According to national survey data compiled by UnionStats.com, the number of government union members has shrunk by nearly 1%, or 152,000, since the 2018 ruling. If more states follow Michigan’s lead and adopt annual dues-deduction consent requirements, that exodus could accelerate, and union revenue could plummet. The National Education Association—the nation’s largest government union—is projecting a decline of 128,410 members over the next two years, after already losing 103,176 dues- and fees-paying members since Janus. 
The number of workers choosing to either leave their unions or opt out of paying agency fees proves why Janus was necessary. But the rulingis still far from being fully implemented. Untold thousands of state and local employees are likely still handing over money to unions with whom they disagree politically. Often these employees aren’t given a meaningful chance to make the informed choice to opt out. Michigan has taken a vital step toward making the worker protections of the Supreme Court’s Janus ruling a reality. It’s time for other states to follow suit, and fast.
Mr. Delie is director of labor policy and Workers for Opportunity at the Mackinac Center for Public Policy.
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