Janus v. AFSCME could mean more freedom for Illinois’ government workers

Mailee Smith

Staff Attorney and Director of Labor Policy

Mailee Smith
/ Labor
October 9, 2017

Janus v. AFSCME could mean more freedom for Illinois’ government workers

For four decades, government workers have been denied their First Amendment right to freedom of association, but that could change with a U.S. Supreme Court decision in 2018.

The First Amendment is among the most cherished parts of the U.S. Constitution. Among its provisions, the First Amendment guarantees everyone the right to choose with which organizations to associate. That includes the right to determine what organizations a person funds.

Yet for 40 years, that right has been stripped from government workers. Currently, approximately 5.5 million government workers in 22 states are forced to pay money to unions just to keep their jobs.

It’s an unfair decision: Pay the union or lose your livelihood.

It means anyone who wants to dedicate his or her life to being a teacher, child services worker or firefighter automatically loses constitutional rights enjoyed by others in American society.

But on Sept. 28, 2017, the U.S. Supreme Court agreed to hear Janus v. AFSCME, an Illinois-based case seeking to restore First Amendment rights to government workers.

The plaintiff in the case, Mark Janus, loves his job. As a child support specialist with the Illinois Department of Healthcare and Family Services, he advocates for kids when their parents aren’t together anymore.

But Janus doesn’t think the union representing him – i.e., the union he is forced to fund – is working for the good of Illinois. And he doesn’t think he should be forced to support its political agenda.

The Supreme Court’s decision to take Janus’ case has generated headlines across the country, with union leaders asserting that a decision in Janus’ favor will hurt government-worker unions.

But that’s a distortion of what the case is about. Janus is about restoring First Amendment rights to government workers, giving them a choice whether to support a union. It’s about ensuring their ability to exercise the same rights as every other person in this country. And it does not mean the end of government-worker unions in Illinois.

Janus means restoring First Amendment rights to government workers

The First Amendment guarantees everyone the right to choose which organizations to join or fund. But current Illinois law – as well as laws in 21 other states – prevents some workers from exercising that right.

In its 1977 decision Abood v. Detroit Board of Education, the Supreme Court ruled that public employees like Janus could be forced to pay for union representation, regardless of whether the worker wants to be represented by the union. Since then, government workers in Illinois have been forced to pay union fees as a condition of their employment.

But if the Supreme Court rules in Janus’ favor, every government employee across the country will have the right to exercise the freedoms of association and of political expression the First Amendment guarantees – and to choose for himself or herself whether to give money to a union.

Janus does not mean the end of government-worker unions in Illinois

If Janus wins, it does not signal the end of government-worker unions in Illinois. Nothing would change in the collective bargaining process between government units and government worker unions.

Government workers will still be able to choose union membership. In fact, every current union member would remain a member after Janus. Under Illinois law, a union member must take the affirmative step of opting out of the union to cancel his or her union membership.

Unions will still represent their members 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 employer.

That undermines union leaders’ claims that a decision for the plaintiff in Janus will up-end public-sector collective bargaining.

In fact, the lamenting of union leaders over the potential outcome in Janus is more of an admission. If union leaders sincerely believe members will walk out the door if given the opportunity, that means those unions must not be satisfying those members in the first place.

Janus could actually spur union improvement. If unions have to work and prove their value to earn members’ loyalty, workers should get better services from the union.

And if union leaders’ fears come to pass and unhappy members head for the exits, that’s all the more reason for the Supreme Court to grant the relief Janus requests. Workers should not be forced to pay an organization that is not representing their interests.

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