Janus v. AFSCME: A new era of freedom for government workers on the line

Mailee Smith

Senior Director of Labor Policy and Staff Attorney

Mailee Smith
May 4, 2018

Janus v. AFSCME: A new era of freedom for government workers on the line

The Janus case could mean the restoration of government workers’ constitutional right to free speech.

An upcoming U.S. Supreme Court decision could mark a new era of freedom for government workers in Illinois – and across the nation.

For decades, government workers have been forced to pay fees to a government union as a condition of employment.

Under the current system, it doesn’t matter whether a government worker thinks the union represents him or her well. It doesn’t matter whether he or she likes the way the union focuses on politics or prioritizes Chicago over downstate issues.

Public employees must pay fees to their unions or risk losing their jobs.

But Janus v. AFSCME – one of the most important labor cases in decades – could change that.

Mark Janus, a child support specialist for the state of Illinois, loves his job and works hard for the state. But he doesn’t agree with the politics and policies of his union. And he doesn’t think he should be forced to give money to a union just to keep his job.

The Supreme Court heard Janus’ case on Feb. 26, 2018. Observers expect a decision sometime before the court ends its session in June.

The specific question before the court: Do forced union fees violate the freedom of speech guaranteed by the First Amendment?

Based on past cases and oral arguments in Janus, court watchers expect the justices to line up 4-4 – with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito supporting plaintiff Mark Janus and worker freedom, and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan supporting defendant AFSCME and forced union fees.

Justice Neil Gorsuch will likely be the deciding fifth vote – but he remained silent during oral argument, giving no indication where he may land.

Below are two potential outcomes depending on how the court ultimately answers the question before it.

Outcome No. 1: Forced union fees are unconstitutional under the First Amendment

What this means: Government workers’ rights to freedom of speech are restored.

Currently, government workers in 22 states (including Illinois) are forced to make the same decision as Janus: Pay the union, or lose your job.

But government unions are inherently political. And paying the union means workers are forced to pay for political speech with which they may not agree.

In fact, the political nature of collective bargaining itself – which is funded by compulsory fees – was one focus during oral arguments on Feb. 26. The discussion touched on the impact of the collective bargaining process on wages, overtime costs and more as a matter of public concern, implying it is political in nature. In other words, forcing government workers to fund collective bargaining compels them to engage in speech against their will – and that violates their constitutional rights.

If the court sides with Janus and agrees that forced union fees violate the First Amendment right of free speech, government workers will no longer be required to pay union fees just to keep their jobs.

That will mean a win for worker freedom across the nation.

What will change: Every government employee across the country will get to decide for himself or herself whether to support a union.

Workers who want to opt out of the union will need to take action. Generally, that includes 1) written notice to the union opting out of membership, and 2) written notice to the government employer that the worker no longer authorizes dues to be taken from his or her paycheck.

No one knows yet whether workers who have already opted out of their unions – commonly referred to as fair share payers – will immediately see a change in their paychecks. Workers who were fair share payers before Janus may want to follow step two above (written notice to the government employer) to ensure their paychecks are no longer docked for union fees.

What won’t change: Government unions will continue to maintain all other powers afforded them under state law. Collective bargaining itself will not be affected.

Specifically, if the Supreme Court rules in favor of Janus:

  • Unions will still maintain the monopoly to represent all workers at the bargaining table.
  • Unions will still bargain over wages, hours and other conditions of employment.
  • Unions will still be able to go on strike as permitted by state law.
  • Unions will still represent workers in grievances against their employers.

What’s more, workers who want to maintain their union membership will be free to do so. Nothing changes for union members.

Outcome No. 2: Forced union fees are not unconstitutional under the First Amendment

What this means: Government workers’ rights to freedom of speech are still curtailed.

If the court declines to end forced union fees, government employees in 22 states will be stuck with the unfair decision of paying the union or losing their jobs.

What will change: Nothing will change without legislative action in the 22 states that lack right to work for government employees.

What won’t change: Government unions maintain control of all workers’ paychecks, even those who don’t support the union.

A lot is on the line for government workers. Janus is a landmark case that will determine whether government workers are free to exercise the rights guaranteed to them under the U.S. Constitution – or whether they will continue to be subjugated to the whims of government unions.

Want more? Get stories like this delivered straight to your inbox.

Thank you, we'll keep you informed!