Tags: Supreme Court | Unions | janus | workers rights

The High Court's Janus Ruling — After 2 Years

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By    |   Monday, 03 August 2020 02:28 PM

The Supreme Court’s landmark decision Janus v. AFSCME, which was handed down only two years ago, has recently enjoyed fresh attention in the national press.

Mark Janus sued the American Federation of State, County and Municipal Employees, or AFSCME, Local #31 over whether it was legal or not for him to pay a fee for not belonging to a union.

In overturning a 1977 decision, Abood v. Detroit Board of Education, the Supreme Court found that forcing Janus to pay those fees violated the First Amendment’s guarantees of freedom of the press and freedom of association.

Now the revived interest in Janus concerns the “second part” of the decision. Attorneys General throughout America have advanced the implementation of Janus, but the legal issues that have arisen since Janus have not subsided.

Vincent Vernuccio of the conservative Mackinac Center for Public Policy in Michigan told Newsmax: “Justice Samuel Alito wrote in the Opinion of the Court that in order for unions to take money out of a worker’s paycheck, you have to have what is known as ‘affirmative consent.’”

By that, Vernuccio explained, “it means employees have to willfully opt in to a union, and the employer has to have some evidence that the respective employee wants that. They can’t just take the unions’ word for it and allow them to take money out of a paycheck.”

Since the ruling came down in 2018, the way that the states have begun to implement or impede Janus legislatively is on a blanketed ideological basis.

“What we saw immediately after the decision was both good and bad,” Vernuccio told us. “The good was that it forced pro-union states like California to acknowledge, ‘Yes, workers have a right to work now.'”

The bad, he quickly added, “is that in those states like California, New York, and New Jersey, they all put in a lot of roadblocks to block public employees from exercising their First Amendment rights. And these unions and states have created ingenious ways to undermine Janus and undermine workers’ rights.

“There are time windows that unions use so that workers can only opt-out of the union during specified times of the year,” he said. “There are mandatory/‘captive audience’ meetings where unions can basically do their pitch to new employees.”

On the front lines of the Janus implementation fight are the state attorneys general who have taken strides to preserve workers’ rights.

One such official is Alaska State Attorney General Kevin Clarkson, who walked us through the legal history of implementing Janus.

“Alaska has a statute that requires the state to collect dues from paychecks of union members,” Clarkson told Newsmax. “It also used to require that the state collect an ‘agency fee’ for workers who were not formal members of a union. [This fee] would have helped the union compensate for the cost of collective bargaining on behalf of the employees who aren’t members who benefit from those agreements.”

Clarkson also pointed out that “the governor asked me to take a look at Janus when we came into office concerning compliance. We found that the agency stopped taking fees from non-members, but the state was still collecting the union dues from the union paycheck.

“There has to be clear and compelling evidence [that Janus is being complied with],” said Clarkson. “We determined that the state did not have that evidence.”

The attorney general emphasized that “what these unions now need is an affirmative election to opt in to a union by the worker that constitutes clear and compelling evidence in relation to a worker’s affirmative consent to join/opt into a union.

“Many union members were in the dark about Janus,” said Clarkson. “As soon as I released my Attorney General opinion, we had numerous state employees who came to me and said that they didn’t even understand that it was now optional to be members of a union. They still thought it was required to be members of a union, which made us very suspicious of what these unions might be telling these people.”

During the last Alaskan gubernatorial administration, he explained, the unions “set up their collective bargaining agreements, and they agreed to these provisions. They made one called a ‘Hotel California’ provision. Basically, [this means] there are these tiny ten-day windows that are only once a year. They are different for every employee, because they are by the anniversary of their hiring date.

“If they don’t opt-out during that window, they are stuck in the union for another year.”

As to how the rest of the country will adapt to and implement Janus, this is so far unclear.

Clarkson said he was happy to see that attorneys general in other states — notably Ken Paxton of Texas — have taken similar steps. Every state is different, and the law only triggers if the state acts as a collection arm.

So far, nothing is stopping unions from collecting their member dues, except the unions themselves.

It is a possibility that another case that Mr. Janus has filed with the Supreme Court could be on the docket. The goal of “Janus II” is to claw back on the dues payments that he made involuntarily.

Janus lost in the lower courts, but he filed a sur petition that has been held over by the Supreme Court four times. The last time it was held over was for this fall, and if they choose to take it, he would be likely to win.

While Janus is not uniformly implemented across the states, there remains hope that further Supreme Court decisions will rule in favor of workers’ rights.

The overall goal of Janus, Vernuccio reminds us, is “advancing the worker’s rights and ensuring that they are protected.”

How that plays out in court in the months and years ahead will be a defining era in the history of the relationship between workers and unions.

Michael Cozzi is a Ph.D candidate at Catholic University in Washington, D.C.

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The Supreme Court's landmark decision Janus v. AFSCME, which was handed down only two years ago, has recently enjoyed fresh attention in the national press. Mark Janus sued the American Federation of State, County and Municipal Employees, or AFSCME, Local #31 over whether it...
janus, workers rights
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2020-28-03
Monday, 03 August 2020 02:28 PM
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