On September 29th, the Liberty Justice Center, alongside Mark Janus and the Illinois Policy Institute, filed an amicus brief with the U.S. Supreme Court in Alaska v. Alaska State Employees Association. The case asks whether government employers can take union dues from employees’ paychecks—even if the government does not have proof that employees knew they have the First Amendment right not to pay a union.
This case follows up on the landmark 2018 case Janus v. AFSCME, which held that the First Amendment prohibits governments from forcing their employees to pay union dues or fees. To prevent such coercion, the Court held that, before the government takes union dues or fees from an employee’s paycheck, it must have “clear and compelling” evidence that the employee gave “affirmative consent” to waive their right not to pay—that is, the government must have proof that the employee freely and knowingly chose to pay money to the union.
To adhere to the Supreme Court’s ruling, the State of Alaska created a dues deduction form informing employees of their First Amendment right to not pay union dues under Janus, and adopted a policy under which the State would directly collect such forms from employees—enabling employees to make a voluntary choice and opt out at any time, not just within a narrow opt-out window set by the union. But the Alaska State Employees Association sought, and the Alaska Supreme Court granted, an injunction halting the State’s efforts, leaving thousands of state and local government employees without their Janus rights.
“This is a cause that’s near to my heart,” said Mark Janus, plaintiff of the 2018 Janus case and now Senior Fellow at the Liberty Justice Center. “Workers have the right to speak up for what they believe in, and, equally, the right to opt out of speech they disagree with—without fearing they’ll be fired for it.”
“Forcing workers to subsidize union speech as a condition of employment violates the First Amendment,” said Mailee Smith, Senior Director of Labor Policy and Staff Attorney at the Illinois Policy Institute. “We’re proud to stand with workers like Mark, ensure they know their rights, and defend those rights.”
In the years since the Supreme Court issued its ruling, multiple states have passed laws to make it more difficult for employees to know and exercise their rights under Janus. In addition, multiple lower courts have refused to enforce the “affirmative consent” requirements set forth by the Supreme Court when employees have sought to enforce their Janusrights by alleging that they did not consent to pay unions freely or knowingly.
“Unions have convinced states, government employers, and the lower courts to ignore one of the most important parts of the Janus decision,” said Liberty Justice Center Senior Counsel Jeffrey Schwab. “The Supreme Court must intervene and make clear that it meant what it said in Janus—workers must be fully informed of their rights before the union can claim any of their paycheck.”
In their amicus brief, Mark Janus, the Liberty Justice Center, and the Illinois Policy Institute urge the Supreme Court to hear Alaska v. Alaska Employees Association and affirm that the Court’s ruling in Janus means that money cannot be withheld from employees on behalf of unions unless and until the government has clear evidence of the employees’ free and knowing consent.
The Liberty Justice Center’s amicus brief is available here.