Workforce Development

States Seeking to Protect Public Sector Workers’ Rights

A January news release by the Bureau of Labor Statistics, summarizing labor statistics for 2021, points to an interesting dynamic across U.S. labor environments: while unions lost 241,000 members last year, 33.9% of public sector workers are still unionized compared to only 6.1% of private sector workers. However, although public union membership rates have remained historically consistent since the 1980s, the nation’s ten largest public have lost almost 310,000 “agency fee-payers” since the 2018 Janus v. AFSCME Supreme Court decision. Today, states are active in promoting policies that protect these rights of workers to choose how they associate with unions.

Ironically, although public union membership rates have remained consistently above 33% over the past 40 years, it was not until President John F. Kennedy’s Executive Order 10988 in 1962 that federal government employees received the right to unionize. States had begun this process earlier, beginning with New York in 1958 and Wisconsin in 1959. 

By the end of the 1970s, most states followed suit enacting policies codifying collective bargaining rights for public employees – leading to a dramatic increase in state and local government growth. Between 1920 and 1975, federal, state, and local governments increased their share of total U.S. nonfarm jobs from 9.5% to 19.1%. 

The expansion of public unions and increase in the number of government workers framed new questions concerning the boundaries between collective bargaining privileges and constitutional rights, as unions levied fees on nonmember employees and used funds for political purposes. So called “agency fees” became legally protected under the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education, establishing a precedent which restricted workers’ labor decisions and weakened free speech rights for public employees. 

By the early 2000s numerous states began to support policies protecting workers from mandatory union fees and reducing union influence over public resources. In 2012, both Indiana and Michigan passed “right-to-work” reforms, prohibiting unions from collecting compulsory dues and agency fees, followed by Wisconsin in 2015.  

Ultimately, in 2018 the Supreme Court enshrined these provisions for public sector workers nationwide with their decision in Janus v. AFSCME, upending the 41-year long Abood precedent. As a result of the Janus decision, public unions can no longer compel employees to pay agency fees or require other forms of financial support as a condition of public employment. 

Although public union membership levels remained relatively the same in the immediate aftermath of Janus, the American Federation of State, County, and Municipal Employees (AFSCME) lost approximately 110,000 agency fee-payers alone between 2017-2019. The significant decrease in previously mandatory agency fee payments by public employees highlights the importance of protecting workers’ rights to choose how their financial resources are spent and what labor organizations they wish to join. 

Today, states are building upon the values enshrined in Janus and pushing for reforms informing workers of their labor choices and protecting public financial resources from union overreach. 

Pennsylvania is currently contemplating legislation designed to protect employee privacy by exempting workers’ personal information from being “subjects of collective bargaining.” Adjoining packages require public employers to inform workers of their Janus rights in determining whether to join a union and bar employers from deducting union political contributions from workers’ paychecks.

Similar policies have also been introduced this year in Virginia, mandating annual employee consent before union dues or fees are withheld from worker paychecks and prohibiting public employers from compensating employees for union activities funded through union dues or other payments. 

Fundamentally, public and private sector workers deserve the right to determine their own labor decisions and choose whether to associate with an available union. Janus ensures that public unions do not have the ability to condition a career in public service with obligatory union payments, and Right-to-Work laws likewise ensure private sector workers maintain their right to associate or not associate with unions. ALEC model policies such as the Public Employee Rights and Authorization Act advance the principles enshrined in the Janus decision.

Other ALEC model policies address other areas of public sector union reform. ALEC’s Political Funding Reform Act prevents the government from action as unions’ dues collectors by prohibiting government employers from collecting political funds, such as union dues, from payrolls. The Fair and Accountable Public Sector Authority Act bans government sector collective bargaining outright to “ensure government accountability to all residents and that third party employee associations do not have preferential powers beyond what other individuals and groups in the state have.”

Altogether, these polices ensure that public employees are properly informed of their rights and that government resources are not captured for private political purposes.

While the report from the Bureau of Labor Statistics shows that roughly one-third of public employees still belong to a public union, the choice to associate or not to associate with a labor organization should rightfully remain in the hands of workers. State policymakers equipped with ALEC model policies can develop balanced labor environments that hold public unions accountable to taxpayers, while ensuring workers are properly informed of their collective bargaining rights and responsibilities.


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