Public employees' First Amendment rights are not adequately protected; Workers in Alaska must provide clear consent before union dues collected
Posted & Edited By MARY KAUFFMAN
August 28, 2019
The formal opinion on the State of Alaska’s compliance with the United States Supreme Court decision in Janus v. American Federation of State, County, and Municipal Employees Council 31 was released yesterday. The opinion finds that the State must take significant additional steps to protect the First Amendment rights to free speech for State employees.
“Forcing State employees through state law to pay union dues that will be used for political purposes and speech they may not agree with has created an unconstitutional restriction of free speech,” said Attorney General Clarkson. “The nation’s highest court has ruled repeatedly that freedom of speech also means the right to refrain from speaking at all. In order to comply with the highest court’s ruling and the U.S. Constitution, the State has to determine that an employee must have freely and knowingly consented to have dues deducted from their paychecks.”
“[Yesterday’s] Attorney General opinion clearly articulates that the State of Alaska is not in compliance with the Supreme Court’s ruling in Janus v AFSCME,” said Governor Michael Dunleavy. “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.”
Upon taking office, Governor Dunleavy initiated reviews across all departments. As part of that review, he asked Attorney General Clarkson to evaluate whether the State of Alaska is in compliance with the U.S. Supreme Court ruling in Janus v AFSCME.
To bring the State into compliance with the Janus decision, Attorney General Clarkson says the State will need to significantly change its payroll process by obtaining “clear and compelling evidence it has the employee’s consent before deducting union dues and fees."
In Janus v. AFSCME the Supreme Court did not simply require government agencies to stop collecting agency dues. The Court also said that “employees must choose to support the union before anything is taken from them.”
Janus (and other Supreme Court precedent on waiving a constitutional right) mandates that waiving a Constitutional right cannot be presumed. There must be clear and compelling evidence that an employee has freely and knowingly waived their First Amendment rights before affirmative consent to waive a constitutional right is valid.
The opinion points out the flaws in Alaska’s payroll deduction system and encourages the state to implement a new system to ensure employee’s consent before deducting union dues, as required by Janus. It also calls on the state to ensure that it has the clear and compelling evidence required by Janus.
The Supreme Court ruled that employees have a First Amendment right to a choice when it comes to paying union dues.
Workers for Opportunity, an organization focused on advancing the liberty of employees across the country, praised the decision because it properly implements the U.S. Supreme Court decision Janus v. AFSCME.
In Janus, the Court ruled that forcing public employees to subsidize labor unions violates their First Amendment rights. Therefore, states must have “clear and compelling evidence” that public sector workers wish to waive these rights before they may deduct union dues from employees’ paychecks. Attorney General Clarkson’s opinion held that Alaska’s payroll system is out of compliance with Janus and that public workers in Alaska must provide clear consent before opting in to paying union dues.
“Alaska Attorney General Clarkson is protecting the First Amendment of public employees, ensuring the state has the evidence necessary to collect union dues,” said Workers for Opportunity Labor Expert F. Vincent Vernuccio.
In response to the decision, Gov. Dunleavy said new consent forms will be required from workers who want to join a union and that his administration will be working on “a plan to bring the state into compliance with the law, in short order, and that plan will be rolled out in the next couple of weeks.” Attorney General Clarkson’s opinion was in response to an inquiry made by Gov. Dunleavy concerning the state’s compliance with the Janus decision.
“Attorney General Clarkson is the first in the nation to correctly recognize that no public employer should collect dues unless they have evidence that their employees wish to waive their First Amendment rights and consent to pay union dues,” Vernuccio said.
According to Workers for Opportunity, the action taken by Attorney General Clarkson will have a real and lasting impact on individual employee rights and their paychecks. Alaska is emerging as a leader in fully complying with the decision and eliminating barriers that limit employees’ abilities to exercise their rights.
In February 2019, the Mackinac Center for Public Policy, a $12 million organization, launched the national initiative - Workers for Opportunity - which works alongside state and national allies, lawmakers, administrations and other stakeholders to advance workplace freedom for employees across the country.
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