The AG said the state’s system for processing union paycheck deductions should be changed so that employees provide consent directly to the state, affirmatively opting in to dues deductions, with annual opt-in periods.
Alaska Attorney General Kevin G. Clarkson has found what may be “new meaning” in the U.S. Supreme Court’s 2018 historic decision in Janus v. American Federation of State, County, and Municipal Employee, Council 31. To comply with Janus, Clarkson says the state will need to significantly change its payroll process by obtaining “clear and compelling evidence it has the employee’s consent before deducting union dues and fees”—said differently, employees must “opt-in” to dues deductions. Moreover, consent must be given directly to the state—unions can’t be trusted to manage the consent process, according to Clarkson’s August 27 legal opinion.
In Janus, the High Court ruled that the state of Illinois cannot require nonunion public employees pay an “agency fee” to cover union expenditures for collective bargaining activities. In a 5-4 decision, the High Court concluded that the state’s extraction of agency fees from nonconsenting public employees violates the First Amendment.
Deductions from non-union members. Arguably, Clarkson’s opinion ventures beyond the circumstances discussed in Janus. There, the High Court was ruling on an Illinois law under which, when “a public-sector collective bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages” (Emphasis added).
The Court held that this procedure violates the First Amendment and could not continue. “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay,” wrote Justice Alito (Emphasis added). “By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed Rather, to be effective, the waiver must be freely given and shown by ‘clear and compelling, evidence Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met” (Emphasis added).
As applied to Alaska public employees. Clarkson rendered an opinion on Alaska’s Public Employee Relations Act, which requires public employers to deduct from their employees’ wages any union dues, fees, or other benefits, and to transmit these funds to the union, if the employee provides written authorization to do so.
In his interpretation of Janus, Clarkson advised that the state would have to significantly change its current practices for deducting union-related dues and fees from employees’ paychecks in order to “protect state employees’ First Amendment rights.”
All employees must give consent to the state. To ensure that the State of Alaska does not deduct union dues or fees from an employee without “clear and compelling evidence” that the employee freely consents to the deduction, Clarkson says that consent must be provided directly to the state. “Rather than permitting the union to control the conditions in which the employee provides consent to a payroll deduction from their state-paid wages, the State may implement and maintain an online system and new written consent forms through which employees wishing to authorize payroll deductions for union dues and fees may provide consent.”
This, according to Clarkson, permits the state “to ensure that all waivers are knowing, intelligent, and voluntary.”
Employees must opt-in. Apparently expanding Janus to require that all employees must “opt-in” to union dues and fees deductions, Clarkson said that in order to make sure that “an employee’s consent is up-to-date, as required for it to be a valid waiver of the employee’s First Amendment rights,” the state should require regular opportunities for employees to:
- Opt-in to the dues check-off system and provide their consent to waive their First Amendment rights by providing funds to support union speech; and
- Opt-out of the dues check-off system where the employee determines, for example, that he or she no longer supports the speech being promoted or shares the views of the speaker.
Under this procedure, employees would be asked to “opt-in” to payroll deductions for union dues or fees.
“Were it otherwise, the risk of error—in this case, unwitting violation of an employee’s First Amendment right—would be shifted onto the State, at the expense of the individual employee,” according to Clarkson. “Indeed, the Supreme Court already acknowledged in Knox v. Service Employees International Union, Local 1000 that there are real risks inherent to any opt-out system and that ‘the difference between opt-out and opt-in schemes is important.’”
Regular opt-in period. Clarkson also said that to secure clear and compelling evidence of a knowing waiver, the State of Alaska should provide for a regular “opt-in” period. During this period, all employees would be allowed to decide whether or not they want to waive their First Amendment rights by authorizing future wage deductions.
“Requiring consent to be renewed on an annual basis would ensure that consents do not become stale (due to intervening events, including developments in the union’s speech that may cause employees to reassess their desire to subsidize that speech) and promotes administrative and employee convenience by integrating the payroll deduction process with other benefits-elections employees are asked to make at the end of every calendar year,” according to Clarkson.
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