Law protects employees’ First Amendment rights; Kanawha Circuit judge blocked law at union lawyers’ behest

Charleston, WV (September 9, 2021) – Staff attorneys at the National Right to Work Legal Defense Foundation, a charitable nonprofit dedicated to protecting workers’ legal rights from compulsory unionism, have just filed an amicus brief defending the legality of a state law that protects the First Amendment right of West Virginia public employees to refrain from funding a union. The brief comes during a legal battle by union bosses against the law, in which a Kanawha County Circuit Court judge issued a preliminary injunction at the behest of union lawyers stopping the bill from going into effect.

Foundation staff attorneys urge the West Virginia Supreme Court of Appeals to undo the injunction, arguing that West Virginia’s Paycheck Protection Act is not only valid, but essential to protect West Virginia public sector workers’ rights under the Foundation-won 2018 Janus v. AFSCME Supreme Court decision. In Janus, the justices ruled that forcing public sector workers to subsidize union activities as a condition of keeping their jobs violates the First Amendment. The Court also held that no union dues or fees can be taken from a public worker’s wages without a knowing and intelligent waiver of that employee’s First Amendment right not to pay, and that such a waiver “cannot be presumed.”

The justices reasoned in Janus that, because all public sector union activities involve lobbying the government, forcing public sector workers to pay any money to a union amounts to forced political speech forbidden by the First Amendment.

“The Act prevents the government from unwittingly violating their employees’ First Amendment rights by seizing union dues from them without their voluntary, affirmative consent and knowing, intelligent waiver of those rights, as required under Janus,” the brief reads. “The State’s protection of its employees’ First Amendment rights does not violate the constitutional rights of Respondents West Virginia AFL-CIO, et. al. (‘the Unions’), because the Unions have no constitutional entitlement to employees’ money or to the employer’s administration of union dues deduction schemes.”

Because West Virginia has a legitimate interest in protecting its employees’ First Amendment rights, and because union officials’ lawsuit against the Paycheck Protection Act has no chance of success on the merits, Foundation attorneys argue, the West Virginia Supreme Court of Appeals should overturn the preliminary injunction.

This is not the first time the Foundation has supported state policy that protects public employees’ First Amendment Janus rights. Last year, Foundation staff attorneys filed detailed comments backing a Michigan Civil Service Commission (MiCSC) policy that required public employers to obtain annual consent from their workers before taking union payments out of their wages. Officials from the United Auto Workers (UAW) and other unions abandoned a lawsuit contesting the rule in October 2020.

Foundation staff attorneys also filed 10 legal briefs defending West Virginia’s Right to Work law, which was the target of a legal attack by union officials from 2016 until last year. Among the Foundation’s filings were amicus briefs for Reginald Gibbs, who worked as a lead slot machine technician with the Greenbrier Hotel in White Sulphur Springs, WV, and Donna Harper, who worked as a laundry aide and nursing assistant at the Genesis HealthCare Tygart Center in Fairmont, WV. Both workers opposed paying money to the union bosses in power at their workplaces.

“West Virginia union bosses’ aggressive opposition to this commonsense law shows that they care more about finding ways to keep employee money flowing into their pockets than they do about respecting the First Amendment rights of those they claim to ‘represent,’” commented National Right to Work Foundation President Mark Mix. “This law just ensures that public employees maintain full control over whether their money is going to support a union.”

“By opposing this simple protection, West Virginia union bosses are doubling down on coercion instead of focusing on ways to win over the voluntary support of public servants,” Mix added.

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.