On the last day of its term, June 27, the Supreme Court dropped a bomb on states, labor unions, and public-sector workers. In Janus v. AFSCME, the majority opinion for which was written by Justice Alito on behalf of the Court’s five conservative members, the Supreme Court overruled a four-decade precedent that permitted public-sector unions to charge fair-share fees (or agency fees) that cover the costs of contract negotiation and administration to non-members that they were required to represent. States had been permitted to allow such fair-share fees in order to promote labor peace and have the benefit of working with an exclusive bargaining representative.
The central holding of the majority decision was radical but straightforward enough: all public-sector workers are now under so-called “right to work,” where workers must now affirmatively opt-in to paying any dues to the unions that represent them. The likely deleterious effects of this decision on union membership and financing, as well as the increased difficulties unions will face in organizing, have been widely discussed. Right wing groups, such as the National Right to Work Committee and its Legal Defense Foundation, the DeVos-funded Mackinac Center, the State Policy Network, and the Koch brothers, have already been trying to hasten labor’s decline by setting up websites and dispatching door-knockers in a campaign to encourage union members to divest their membership.
In addition to the central holding in Janus, the majority decision provides some hints of what may come next:
The Janus Decision Creates Substantial Uncertainty about Public-Sector Workers’ First Amendment Rights
State, local, and federal governments currently employ over 20 million people, and if the normal rules of constitutional analysis applied for the government as employer, the workforce would be unmanageable. Every instance of an employee speaking would raise First Amendment concerns, and no workplace can function when everything becomes a federal case. That is why for fifty years, the Supreme Court has applied a balancing test to determine when the Constitution applies to public-sector employees’ conduct. In Janus, the majority destabilized this area of law, and it is unclear what the outcome will be.
Ever since Pickering v. Board of Education (1968) and its progeny, courts must engage in a two-step analysis to determine if the First Amendment applies when the government-as-employer acts.
The first step looks at “whether the employee spoke as a citizen on a matter of public concern.” Most inquiries end at this stage, because an employee complaining about her salary, her schedule, or most other matters in the workplace are not matters of public concern. If an employee does speak as a citizen on a matter of public concern, then the “question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” This test created a balance that protected individuals’ First Amendment rights to speak up about matters of public concern, while also protecting the government’s ability to efficiently manage the workplace.
The majority in Janus argues that overturning Abood v. Detroit Board of Education (which first permitted fair-share fees in the public-sector workplace) does nothing to disturb the Pickering framework because Abood was not based on Pickering. But, as the dissent in Janus points out, it is difficult to see how that is possible. The balance set out in Abood was essentially identical to the one in Pickering, as it permitted unions to charge reduced fair-share fees that only covered the costs associated with contract negotiations and administration in order to protect the state’s interests in labor peace. Mark Janus’s case concerned the $23.48 that were taken from his paycheck every pay-period to pay his fair-share fees. Whatever legitimacy his complaints over these fees may have had, the complaint should have failed the first step of Pickering because he was not speaking as a citizen on a matter of public concern.
So we are left in unknown territory with regards to employees’ constitutional rights at work. The majority tries to draw a new line between a single employee’s complaints as compared to a group complaint, arguing:
Suppose that a single employee complains that he or she should have received a 5% raise. This individual complaint would likely constitute a matter of only private concern and would therefore be unprotected under Pickering. But a public-sector union’s demand for a 5% raise for the many thousands of employees it represents would be another matter entirely. Granting such a raise could have a serious impact on the budget of the government unit in question, and by the same token, denying a raise might have a significant effect on the performance of government services. When a large number of employees speak through their union, the category of speech that is of public concern is greatly enlarged, and the category of speech that is of only private concern is substantially shrunk.
Justice Alito’s language here would seem to open the door for First Amendment protections for many public-sector labor concerns. If a group of workers make a complaint about their salaries or lack of promotion, are those complaints now protected under the First Amendment? If the new test looks at the number of workers who participate and what the effects are on public services, then no matter what the majority says, the constitutional framework has changed significantly.
Labor Law Reform Alone Will Not Save Labor
For decades, states and the federal government have been cutting taxes, which has led to huge fiscal problems in state budgets. In response, many states have cut services, education, and employee salaries and benefits. (Indeed, this was part of the reason for the widespread teacher strikes earlier this year.) However, in Alito’s majority opinion, he lays the problem at labor’s door. He writes:
Illinois, like some other States and a number of counties and cities around the country, suffers from severe budget problems. As of 2013, Illinois had nearly $160 billion in unfunded pension and retiree healthcare liabilities. By 2017, that number had only grown, and the State was grappling with $15 billion in unpaid bills. We are told that a “quarter of the budget is now devoted to paying down” those liabilities. These problems and others led Moody’s and S&P to downgrade Illinois’ credit rating to “one step above junk”—the “lowest ranking on record for a U. S. state.”
The State of Illinois claimed that its employment-related debt was “squeezing core programs in education, public safety, and human services, in addition to limiting [the State’s] ability to pay [its] bills.” In the collective bargaining process with the public-sector unions that represent its employees, Illinois tried to exact concession in the form of reducing health insurance benefits, holiday and overtime pay, and promotions. The unions responded by arguing that the state should raise more revenue by creating a more progressive income tax system, reducing corporate tax loopholes, and cutting spending to Wall Street financial firms.
Putting aside Alito’s legal reasoning as to why this means that fair-share fees are matters of public concern, it is noteworthy how much space he spends discussing the fiscal crisis in states and the costs of public employment. When reading the pages that Alito devotes to the issue of states’ fiscal crises, one can sense that he locates the problem with the unions. This is not an uncommon idea in conservative circles, but it constituted a strange component of what was purported to be a First Amendment case involving fees for labor representation.
This discussion shows that as long as there are regressive taxation policies that lead to public service cuts, public workers and unions will continue to receive the brunt of the attacks.
Alito’s Hints on What Comes Next
In the dissent in Janus, Justice Kagan referred to the majority’s “six-year campaign” and “six-year crusade” to ban fair-share fees. She further warned that the majority’s weaponization of the First Amendment did not begin with Janus and it will not end with Janus, stating: “So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.” One should heed this warning and pay close attention to hints that Alito may have dropped in the decision for what other areas of labor law may be vulnerable.
One particularly troubling passage was Alito’s concern over fair-share fees that have been collected in the forty-one years since Abood was passed:
We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.
…as long as there are regressive taxation policies that lead to public service cuts, public workers and unions will continue to receive the brunt of the attacks.
In this passage, Alito appears to be opening the door to a consideration of whether past fair-share fees might be recoverable from public-sector unions. Indeed, this is not a theoretical musing by Alito. Before the Supreme Court was an appeal brought by the National Right to Work Legal Defense Foundation (the same group that brought Janus and most of the other cases in the majority’s “six-year crusade”) in Riffey v. Rauner, which seeks to recover $32 million from SEIU for union fees paid by home care workers prior to the Harris v. Quinn case. (Harris held that these workers were not full public-sector employees and placed them under “right to work.”) The morning after Janus, the Supreme Court granted cert, vacated, and remanded Riffey to the 7th Circuit for reconsideration in light of Janus. This means that the case may soon be back at the Supreme Court again.
The Janus decision adopted a radical view of First Amendment and labor law, which has been pushed by anti-union advocates for decades. In doing so, it has disrupted both areas of law in ways that may be difficult to reconcile. Alito’s decision repeatedly attempted to argue that the disruption to First Amendment jurisprudence would be minimal, but Justice Kagan put a finer point on the only way that may be possible: “Either the majority is exposing government entities across the country to increased First Amendment litigation and liability… Or else, when actual cases of this kind come around, we will discover today’s majority has crafted a ‘unions only’ carve-out to our employee-speech law.”