Comments urge state agency to go further, ensure that employees know they have First Amendment right under Supreme Court decision to stop payments to union

Lansing, MI (July 6, 2020) – The National Right to Work Foundation submitted comments to the Michigan Civil Service Commission, supporting the Commission’s proposed move to nix the state’s current policy of using old dues authorizations to continue deducting union dues from public employee paychecks. The Commission proposes a system requiring the state to obtain consent from workers before taking dues from them every year.

The Commission’s slated rule was issued in response to the Foundation-won 2018 Janus v. AFSCME Supreme Court decision, in which the Court ruled that all public employees have a First Amendment right to abstain from subsidizing union activities. In light of that ruling, the Foundation’s comments urge the Commission to go further to protect Michigan public servants’ Janus rights, and annually notify workers that they have a First Amendment right to stop dues deductions from their paychecks at any time.

In Janus, the High Court struck down mandatory union payments as violating the First Amendment rights of government employees. The Court ruled that any compelled payments to a union taken without a government worker’s affirmative consent violate the First Amendment. The Court further made it clear that this consent requires a clear and knowing waiver of First Amendment rights. Justice Samuel Alito also wrote for the majority that such a rights waiver “cannot be presumed” by state and union officials.

The Commission’s memo announcing its proposed rule change maintains that, in light of the Supreme Court’s mandate that employees must affirmatively opt-in to union dues payments, “ongoing deduction of fees based on old authorizations is problematic.” In contrast, requiring that the state receive positive approval from employees every year before deducting dues “ensure[s] both that employees know their rights and the validity of these authorizations.”

The Foundation’s comments agree with that reasoning, observing that the proposed rule will help ensure that “the Commission acts within the scope of its state constitutional authority by only authorizing union dues deductions from the wages of those employees who, knowing they do not have to pay, intelligently and voluntarily express their wish to pay those dues.”

However, the comments also point out that the Commission’s proposed language “does not fully notify employees of their constitutional right” to refrain from union dues payments “or the consequences of abandoning that right.” Consequently, they urge the Commission to modify the rule “to require that the notice expressly inform employees of their constitutional right…not to pay any union dues or fees and that authorizing such deductions waives that right.”

The Commission is accepting comments on the policy through July 6. The agency’s next meeting is scheduled for July 15, at which point it could take action to put the plan into effect.

Other states that are considering adopting similar policies include Texas and Indiana. The attorneys general of both states have issued opinions advocating reforms similar to those mentioned in the Foundation’s comments. In addition, Alaska Gov. Mike Dunleavy signed an executive order instituting similar Janus protections for state employees last September.

Since the Janus decision, Foundation staff attorneys have litigated more than 30 cases for workers seeking to enforce and expand the Janus victory. Since Michigan’s Right to Work law was passed, Foundation staff attorneys have also filed at least 120 cases for Michigan workers seeking to defend their rights under the law.

“The Commission is taking an important step to proactively protect the First Amendment right of government workers in Michigan, many of whom may have only authorized dues deductions before the Supreme Court recognized those rights in the 2018 Janus decision, with many likely signing such cards before the Wolverine State adopted Right to Work, when such payments were mandatory,” commented National Right to Work Foundation President Mark Mix. “It is long past time that public workers nationwide should have had their Janus rights respected, and we urge all states to join the growing list of those who are taking the First Amendment rights of their public servants seriously and affirmatively protecting those rights.”

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.