When Mark Janus began working at the Illinois Department of Healthcare and Family Services in 2007, he was surprised to discover a deduction from his paycheck for “fair share” union dues to the American Federation of State County and Municipal Employees even though he was not a union member.

“I never signed anything agreeing to pay fees and didn’t agree with all of the ways the union was spending dues,” Janus says. “And yet, I didn’t have a choice about whether or not to pay these nonmember dues. So, I just kept paying.”

That went on until early 2015 when Janus filed a lawsuit against AFSCME, claiming that his First Amendment freedom of speech rights were being violated. During the next three years, attorneys from the Liberty Justice Center argued his case through the court system. The U.S. Supreme Court decided in Janus’ favor on June 27, 2018, in a 5-4 decision. The ruling affirmed public employees’ First Amendment rights and determined government employees could not be forced to join a union and could not be required to pay union dues or fees.

“The main objection some workers had wasn’t the fee, it was being forced to support an organization they didn’t want to belong to and that wasn’t in line with their political beliefs,” says Elizabeth Hovde, Center for Worker Rights research analyst for Washington Policy Center, an independent think tank based in Seattle. “People don’t like to be forced to belong to anything.”

Constance Cooke, a high school teacher in Washington state remarks, “My dad was a union leader for many years and I am willing to support those who fight for fair wages and working conditions. However, I am not willing to support an organization with an agenda I don’t agree with.” She adds that the Janus decision should make opting out easy and alleviate workers’ fears of retaliation.

Janus rights now face hurdles

Although the Janus decision upheld the First Amendment rights of public sector employees, it has been far from self-executing during the past three years. Even before the court decision, bills were introduced in some states, including Washington, to make it more difficult to cancel union memberships and stop paying fees.

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“The onus is on you to ask your human resources manager what the rules are in your workplace,” says Paul Guppy, WPC’s vice president for research. “For example, a workplace may only allow workers to opt out of the union at certain times, such as the anniversary of their hire date.

“Before the Janus decision, employees were automatically required to join the union and even if an employee then jumped through the hoops to opt out of membership, the union could charge an ‘agency fee’ only slightly less than full dues, supposedly because all workers had the ‘benefits’ of their lobbying efforts,” Guppy explains. “At the same time, these agency-fee payers had no voice or rights within the union at all, so most people just remained full union members — sometimes with pressure from coworkers and management.” The union membership rate of public sector workers nationally (34.8%) was more than five times higher than the membership rate of private-sector workers (6.3%) in 2020, according to the U.S. Bureau of Labor Statistics. But in Washington state, more than half of the public workforce belonged to unions.

“It makes sense that government unions had more members in states like Washington than states that didn’t require public workers to pay fees even if they aren’t members,” says Hovde. “Now unions actually have to persuade to win and retain members — which is a good thing.”

In an effort to retain membership in public unions, and in response to pressure from unions post-Janus, Washington is among states that have passed laws requiring all new state employees to attend a 15-to30-minute union orientation meeting (depending on which union you belong to). Unions also may distribute materials, use workplace bulletin boards and have access to employees’ mailing addresses and phone numbers to spread the union’s chosen information. That same access is not available to other private organizations seeking to contact public employees about their Janus rights.

Mark Janus

Freedom of choice

According to Janus, his case wasn’t about being for or against joining a union but about having a choice. “When I filed my case, I thought I was in the minority,” says Janus, who is currently a senior fellow with the Liberty Justice Center. “But after the case was settled in my favor, I learned there were many others across the country who felt the same way I did. My case allowed other public-sector employees to stand up to their union and fight for their First Amendment rights without repercussions.” 

“The decision to join a union is a personal one with pros and cons,” says Hovde. “The Janus decision gives individuals the right to make a choice that aligns with their personal beliefs. Mark Janus, for example, thought his union was lobbying for tax dollars to be prioritized in a way he thought would harm his state’s most vulnerable people. That’s inherently political activity that no one should be compelled to support.”

Because of the Janus decision, workers are no longer required to fund politics with which they disagree. They can choose whether or not to join a union and pay dues, or keep the money in their paycheck, which can be more than $1000 annually. Public employees can learn how to opt-out of their union without paying dues or fees at optouttoday.com.

Washington Policy Center is an independent, nonprofit think tank that promotes sound public policy based on free-market solutions. Its Center for Worker Rights has extensively examined the issues surrounding the Janus case and workplace freedom issues.