Myths vs. Facts: Public Workers’ Janus Rights

In 2018, the United States Supreme Court released its decision in Janus v. AFSCME, striking down mandatory union memberships and fees for public sector workers. It ruled that forcing public sector workers to associate with unions violated workers’ First Amendment rights, clarifying that workers’ choice in this matter could not affect their jobs.

As multiple state Attorney Generals have noted, states still have work to do to comply with the decision. Indeed, Alaska Attorney General Kevin G. Clarkson specifically acknowledged this need in his 2019 legal opinion on complying with the SCOTUS decision, stating, “Janus requires a significant change to the State’s current practice in order to protect state employees’ First Amendment rights.”

The following resource can help state leaders be equipped with facts to debunk myths surrounding the Janus decision and be aware of why more reform is still necessary.

MYTH #1: The Supreme Court’s Janus decision means states do not need to take further action on this issue.

FACT: While public sector workers can no longer be fired or denied employment due to their decision to support or not support a union, workers in some states still face hurdles to exercise this freedom.

Some public workers in Pennsylvania, for example, can be locked into union membership for years, with only a 15-day window every three years to opt out. Missing this opt-out window means  workers can be forced to pay union dues until the opt-out window comes around again over 1,000 days later. Workers in other states like California and Tennessee face similarly short opt-out windows with stringent requirements that impede public sector workers’ ability to make timely decisions about their union memberships.

In his 2020 legal opinion on the Janus decision, Texas Attorney General Ken Paxton acknowledged this problem and underscored the necessity of requiring frequent membership renewals from workers, writing:

“Organizations change over time, and consent to membership should not be presumed to be indefinite. See Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 315 (2012) (explaining that the choice to support a union may change as a result of changes in the union’s political advocacy)… [While] the period of time for which employee consent to a payroll deduction validly operates… remains an open question… a court would likely conclude that consent is valid for one year from the time given and is sufficiently contemporaneous to be constitutional.”

States can ensure that public sector workers have the freedom to opt in and out of union memberships on a consistent basis by implementing reform similar to the ALEC model Public Employee Rights and Authorization Act, which clarifies this requirement.

MYTH #2: Workers need no additional support to be aware of their Janus rights.

FACT: Americans should know and exercise their rights. However, with more Americans switching jobs and at a higher frequency than ever before, and with the public and private sectors having different sets of federal and state laws regulating them, it can be difficult to keep track of the various rules that apply to the different sectors.

While labor policy experts, union officials, and some politically engaged workers are familiar with the Janus ruling, some public sector workers remain unaware of their rights or are unsure of how to exercise them. As is the case with Miranda rights, a good way to protect individuals’ rights is to ensure individuals are aware of them.

To that end, states can help public sector workers make informed decisions about their rights by requiring a disclosure of rights to be included on membership forms. In 2021, Indiana became the first state to pass a law that addresses this concern to explicitly comply with the full scope of the Janus decision. Updated in 2022 to reflect judicial feedback, the law requires public school personnel to be specifically informed of their right to associate or not associate with a union, and it requires these workers to give affirmative consent before union dues can be taken out of their paychecks.

Florida followed suit in 2023, requiring union membership authorization forms to include the following notice:

“The State of Florida is a right-to-work state. Membership or non-membership in a labor union is not required as a condition of employment, and union membership and payment of union dues and assessments are voluntary. Each person has the right to join and pay dues to a labor union or to refrain from joining and paying dues to a labor union. No employee may be discriminated against in any manner for joining and financially supporting a labor union or for refusing to join or financially support a labor union.”

MYTH #3: Requiring workers to acknowledge their rights is forced speech and violates the First Amendment.

FACT: As mentioned above, the Indiana legislature amended a 2021 public sector worker law to reflect judicial feedback about workers’ First Amendment rights. After a lower Indiana court issued an injunction stating that the required rights disclosure on union membership authorization cards violated the First Amendment, the legislature worked to update the required language to comply with the court.

Specifically, the court ruled that the rights disclosures cannot use first-person language like “I am aware that I have a First Amendment right…” and that such language can be considered forced speech. However, third-person language crosses no such boundaries. Consequently, the updated disclosure language that uses language like “The State of Indiana wishes to make you aware that you have a First Amendment right,” does not force speech.

The amended Indiana law and the 2023 Florida law mentioned in section 2 thus ensure workers have both their labor and their free speech rights protected.

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As detailed above, the Supreme Court’s decision in Janus v. AFSCME provided needed clarity around public workers’ rights when it comes to union membership and dues. However, many states have still not taken legislative action to fully comply with the decision and to protect workers’ rights.

ALEC’s model Public Employee Rights and Authorization Act can help states reach full compliance. Its comprehensive reforms reiterate workers rights by ensuring that workers are unambiguously informed of their rights, have ample windows to make membership decisions, and can make labor decisions on an annual basis.