Right to Work Foundation Backs Michigan Commission’s Proposal Defending Workers’ First Amendment Rights

On July 6, 2020, the National Right to Work Foundation filed comments directed to the Michigan Civil Service Commission, which supported the Commission’s proposed step to rescind the state’s current policy of using old dues authorizations to continue seizing union dues from the paychecks of public employees. The Commission floated the idea of a system that required the state to get consent from workers before extracting dues from them annually.

The Commission’s rule was issued as a response to the 2018 Janus v. AFSCME Supreme Court decision, where the Court decided that all public employees have a First Amendment right to opt out of subsidizing union activities. As a response to the ruling, the Foundation’s comments call on the Commission to further protect Michigan public sector workers’ Janus rights, and inform workers on an annual basis that they enjoy First Amendment rights to stop seizing dues from their paychecks at any given time.

In Janus, the Supreme Court ruled that mandatory union payments represented a violation of the First Amendment rights of government employees. The Court determined that any dues a union took by force without a government worker’s affirmative consent infringe on the First Amendment. Furthermore, the Court explicitly stated that this consent “requires a clear and knowing waiver of First Amendment rights. In his majority opinion, Justice Samuel Alito also wrote that “such a rights waiver ‘cannot be presumed’ by state and union officials.”

The Commission’s memo outlining its rule change argues that in light of the Supreme Court’s mandate that employees must give their affirmative consent to union dues payments. However, it did note that “ongoing deduction of fees based on old authorizations is problematic.” By contrast, requiring that the state receive positive approval from employees annually before seizing dues “ensure[s] both that employees know their rights and the validity of these authorizations.”

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The Foundation’s comments are in agreement with the Commission’s reasoning, pointing out 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 note that the Commission’s proposed language “does not fully notify employees of their constitutional right” to withdraw from union dues payments “or the consequences of abandoning that right.” As a result, they urged the Commission to change 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 accepted comments on the policy through July 6. The agency had a follow up meeting on July 15.

Other states like Texas and Indiana are considering similar policies. The attorneys general of these states have put forward opinions calling for reforms akin to those mentioned in the Foundation’s comments. Additionally, Alaska Governor Mike Dunleavy issued an executive order implementing similar Janus protections for state employees last September.

Ever since the Janus decision, Foundation staff attorneys have engaged in litigation in over 30 cases for workers attempting to enforce and expand upon the Janus victory. Since the passage of Michigan’s Right to Work law, Foundation staff attorneys have filed at least 120 cases on behalf of Michigan workers attempting 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,” remarked 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.”

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