State’s Janus interpretation protects workers’ First Amendment rights

The most cherished American freedoms are thought, speech and association. Supreme Court Justice William O. Douglas stated that “restriction of free thought and free speech is the most dangerous of all subversions.” “The framers of the Constitution knew,” said Douglas, “the suffocating influence of orthodoxy and standardized thought,” and “they chose liberty."

Our Constitution guarantees us these freedoms. We have the right to think, speak and associate as we choose. We also have the right to refrain from thoughts and speech and from associations that we reject. Nothing is more abhorrent to our Constitution than the notion of compelled thought, speech or association. The U.S. Supreme Court has held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.”

These freedoms are at the core of a recent Supreme Court decision issued last year called Janus v. Federation of State, County and Municipal Employees. In Janus, the court held that the First Amendment prohibits a public employer from collecting from an employee’s wages and paying to a union an “agency fee” or “any other payment” “unless the employee affirmatively consents to pay.” Underpinning the court’s decision is the principle that no public employee can be compelled to join a union. The court made its ruling because unions engage in political speech and advocacy on a wide range of significant and often controversial issues, both in collective bargaining and political contexts — speech with which public employees might disagree. Until the court issued its Janus decision, the public employees who fund this speech with their union dues and fees had no choice but to participate.

Because the mandated Janus consent involves the waiver of First Amendment rights, an employee’s waiver cannot be effective unless it is given knowingly and voluntarily. Janus therefore requires public employers to ensure that each employee’s consent — the waiver of their First Amendment rights — is demonstrated according to a very high standard: “clear and compelling evidence.”

The Janus decision affects Alaska because the Alaska Public Employee Relations Act assigns public employers — including the state of Alaska — the task of deducting from their employees’ wages any union dues, fees or other benefits and transmitting those funds to unions. Accordingly, at the direction of Gov. Michael J. Dunleavy, the Department of Law has examined whether the state is complying with the law established by the Janus decision. Unfortunately, we discovered that the state is only partially complying.

Last year, the state properly stopped collecting agency fees from non-members of unions. But the former administration left to unions the power to elicit employees to authorize the state to deduct union dues and fees from their paychecks. Worse, the state presumed that employees had authorized union deductions unless they affirmatively opted out, while Janus by contrast requires that public employees expressly agree to union deductions by opting in.

In other words, a public employer cannot deduct money from an employee’s wages unless the employee affirmatively elects to waive their First Amendment right to abstain from supporting union speech and activity. The state may not presume a waiver absent an employee’s opt-out — instead, the state must receive clear and compelling evidence of an employee’s affirmative opt-in to union deductions after having been fully and accurately informed of their right to abstain.

This week, I delivered a formal opinion to the governor outlining the Supreme Court’s Janus decision’s requirements that: 1. public employees affirmatively opt in to union deductions before funds are taken from their paychecks; 2. public employers must receive clear and compelling evidence of an employee’s affirmative opt-in before collecting union deductions; 3. in order to ensure that it receives clear and compelling evidence of an employee’s affirmative opt-in, a public employer must control and conduct the opt-in process, and 4. clear and compelling evidence of a First Amendment waiver can exist only if the waiver is contemporaneous.

The fourth point means that because union speech and activity changes over time, an employee’s affirmative opt-in must be periodically renewed; waivers of constitutional rights do not survive significant circumstantial changes. An annual period of renewal is reasonable in order to allow employees to consider whether they want to continue to associate with a union given its current speech and other activity.

The state places no concern in what a public employee’s choice might be. The state’s obligation is simply to ensure that employees make their own affirmative choices. As Justice Ruth Bader Ginsburg has stated, “A constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom.”

Kevin Clarkson serves as Attorney General for the state of Alaska.

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