In a non-binding opinion, Texas Attorney General Ken Paxton stated that public employers in Texas have an obligation to provide notice to employees of their First Amendment right to opt-out of dues-paying used for political speech, and a one-year renewal of such a notice would likely be in line with constitutional precedent.
The 2019 SCOTUS decision in Janus v. AFSCME ruled that public employees cannot be compelled to pay dues to a union under the First Amendment.
Unions, public and private, have long used their member dues to pay, in part, for political speech. The political speech, by its very nature, is partisan and so some members are effectively sponsoring speech with which they disagree, with no ability to opt-out.
Enter Mark Janus of Illinois.
His lawsuit against his employer, who had for decades taken dues out of his wages and used them for political speech, changed the way unions could operate.
He secured an opt-out for public union employees who did not want to pay dues for speech that didn’t represent their values.
And now, the application of that decision must be faced. At the request of State Rep. Briscoe Cain (R-Deer Park), Paxton’s office issued opinions on three questions:
- Is the state and its political subdivisions required to provide employees a notice of their First Amendment right to opt-out of dues-paying membership?
- If obligated, what is sufficient language to meet this notice requirement?
- After what length of time must the consent by the employee to the union be renewed?
Paxton answered that, yes, the state and political subdivisions must provide notice to their employees of their ability to opt-out and cannot take dues from wages without consent from the employee. He further stressed that dues should be collected in a way “that ensures voluntariness” such as by requiring employees to directly pay their fees to the union rather than having them removed before the wages reach the employee.
In the request, Cain laid out proposed language that could serve as a consent decree. It read:
“I recognize that I have a First Amendment right to associate, including the right not to associate. My rights provide that I am not compelled to be a member of a labor organization. I am not compelled to pay a labor organization any money as a condition of employment, and I do not have to sign this consent form. However, I am waiving this right and consent to union membership. I also consent to having union dues deducted from my paycheck. My consent may be revoked at any time, resulting in the immediate termination of any financial agreement to pay the union dues, fees, or any other form of payment.”
Paxton affirmed this language would satisfy the requirements laid out by Janus.
For the third question, Paxton suggested that while the Janus decision is vague on the question, a consent renewal period of one year would likely be satisfactory. He further added that a consent period stretching beyond that could be satisfactory as well, but a one-time consent decree would not follow SCOTUS’s ruling.
State Rep. Cain, in a statement to The Texan, stated, “The United States Supreme Court decision in Janus v. AFSCME left a few questions that needed to be addressed. I appreciate Texas Attorney General Ken Paxton’s guidance in answering those questions. The requirement that Texas and political subdivisions provide employees a notice of their First Amendment right to opt-out of dues-paying membership, the template language to do so, and a consent renewal period of one year, allow employees to make informed decisions about their participation in a union.”
“The Janus ruling means that unions can not compel employees to pay dues under the First Amendment. Texas Attorney General Ken Paxton’s decision empowers employees to do just that,” he concluded.
It’s been about two years since the Janus decision but states are still ironing out how to apply the jurisprudence to real life. Texas, too, will have to decide how to proceed for its public unions. Cain’s questions are intended to begin that process ahead of the 87th Legislature.
Update: This article has been updated to include State Rep. Briscoe Cain’s comments.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad watching and quoting Monty Python productions.