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As an alternative to producing rulemaking proposals and issuing agency guidance, ACF can take action to regulate union dues collection from CCDF and TANF funds with the goal of expressly prohibiting all union dues skimming. Janus v. AFSCME held, in part, that forced payment of dues to a public sector labor union is a violation of workers’ First Amendment rights. The court held that any waiver of that right “must be freely given and shown by ‘clear and compelling’ evidence. . . . Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”[14] The Trump administration can therefore now take measures to ensure states only deduct dues from providers who have given appropriate, voluntary consent for the deductions. One way to do this is to require unions to annually obtain clear and compelling waivers, meeting a uniform standard, from providers before deducting union dues from their state payments.
In anticipation of the Janus decision, New Jersey enacted a law limiting the period during which a public worker may withdraw from a union to just one 10-day window per year.[15] As referenced above, multiple home care providers in Minnesota reported that the SEIU forged their signatures for the purpose of authorizing dues deductions from their checks.[16] A lawsuit brought by public employees in Washington claims government unions there have pressured and misled them into continuing their membership.[17]
Unions’ refusal to abide by Supreme Court rulings like Harris and Janus give the federal government a compelling interest in stepping in to protect Americans’ civil rights. ACF can protect family child care providers by issuing guidance requiring states to obtain providers’ annual consent, supported by clear and compelling evidence, to union dues deductions. ACF could argue that clear consent is only possible in writing when the provider is identified by verifiable, unique information after indicating that he or she has read and understood the rights he or she is waiving. ACF can enforce a clear consent requirement among the states with the administrative penalty powers granted the department by statute.
For instance, ACF could send a letter or guidance memo to each state’s health and welfare agency explaining what compliance with the Supreme Court’s ruling requires and what will happen if they fail to comply. Appropriate language for such a letter could read as follows:
Dear Secretary/Commissioner ________:
The U.S. Supreme Court, in Janus v. AFSCME, recently ruled that withholding union dues or fees from public employees’ pay without their consent is a violation of their First Amendment rights under the U.S. Constitution. The Court further held that consent to union dues deductions must be established by “clear and compelling evidence.” In an effort to ensure that federal funds allocated to states through the Temporary Assistance for Needy Families and Child Care and Development Fund programs are not misused in violation of the Constitution, ACF directs states to refrain from deducting union dues or fees from TANF and CCDF provider payments unless the provider has first waived his or her First Amendment right to refrain from financially supporting a union.
To comply with the Supreme Court’s requirement that dues may only be withheld upon a showing of clear and affirmative consent, waivers must be designed and distributed by the state and contain the following language:
“I, [payee name], am aware that, as a public employee, I have a First Amendment right, as recognized by the U.S. Supreme Court, to refrain from joining and paying dues or fees to a labor union. I further realize that union membership and payment of union dues are completely voluntary and that I may not be discriminated against for my refusal to join or financially support a union. I hereby waive my First Amendment right to refrain from union membership and dues payment and authorize [legal employer/state agency] to deduct [union name] dues from my payment check in the amounts specified in accordance with [union name] bylaws. I understand that I may revoke this authorization at any time by providing written notice to [legal employer/state agency] or [union].”
The waiver must contain the payee’s full legal name, full Social Security or tax ID number, date of birth, signature, and date signed to be valid. When a union provides the state with a provider’s dues deduction authorization, the state should confirm the authorization by sending a letter to the provider describing the deduction and the provider’s purported authorization, and requiring the provider to respond to the state confirming the deduction before dues may be withheld. Waivers will be valid for one year from the date of authorization and must be resent to payees for approval on an annual basis. Jurisdictions that deduct union dues from federal TANF or CCDF benefits without obtaining a waiver will be found to have misused funds and will be subject to applicable penalties.
Substantial precedent supports these requirements: SEIU and AFSCME membership enrollment and political action committee contribution cards generally require a full name, signature, the last four digits of an enrollee’s Social Security number or employee number, and more.[18] However, union membership forms frequently do not inform employees of their rights in clear and neutral terms. Requiring enrollment waivers be designed and distributed by the state with ACF-prescribed language would help ensure providers receive proper notification of their rights.
Requiring a full Social Security number, instead of a partial number, would provide assurance that the provider filled out the card and help discourage forgery. Unions routinely collect full Social Security numbers from members enrolling in union-provided health benefits.[19] Applying the same requirement to union dues deduction authorization forms is neither unreasonable nor unprecedented.
The annual re-enrollment requirement described above is essential to ensure clear, continued consent. With unions across the nation implementing policies to prohibit members from revoking their consent except in brief escape periods each year, “clear consent” is increasingly elusive, and it falls upon state governments to offer workers that opportunity.
Lastly, union dues deduction authorization cards collected by unions should be provided to and maintained by the state agency responsible for provider payment and union dues withholding. States should not withhold union dues from providers simply because the union informs the state a provider has authorized deductions. The double authentication procedure described in the draft memorandum above provides critical assurance that providers themselves have consented to union dues withholding. Federal agencies such as the Department of Homeland Security, the Department of Commerce, and the Federal Financial Institutions Examination Council have repeatedly endorsed or required, and have prescribed standards for, similar multifactor authentication measures to verify the identity of individuals in employment or consumer settings.[20] As the entity deducting the dues, the state should not abdicate its responsibility to ensure all union dues deductions are properly authorized.
An ACF guidance memo, whether entirely prohibiting or merely regulating union dues skimming, would provide evidence of state rule violations in any civil action ACF took to enforce the substance of the memos. Under the Trump administration, the Department of Justice has limited the purpose that guidance memos can serve as evidence against a defendant in civil or criminal actions the DOJ brings. However, this change in policy does not affect agencies that bring their own civil enforcement actions using staff counsel.[21]
Such a memo would be well within precedent. Under the Obama administration in 2014, citing constitutional authority, DOJ issued guidance to federal, state and local law enforcement agencies prohibiting their officers from profiling suspects on the basis of gender, national origin, religion, sexual orientation or gender identity.[22] The memorandum expanded on a George W. Bush-era memo prohibiting racial profiling and requiring agencies to implement training and data-collection activities related to the new guidance. Similarly, the Bush Department of Education in 2003 issued guidance to states warning them that they may be subject to financial penalties under federal law if they prohibit students in public schools from exercising students’ constitutional right to prayer in school. The memo laid out a detailed First Amendment analysis and prescribed steps states must take to ensure schools comply with federal law.[23]
HHS guidance designed to enforce the Supreme Court’s clearly articulated constitutional standards related to union dues deductions would rest on a firm legal and policymaking foundation. However, regulatory proposals to end union dues skimming of child-care benefits would have more teeth and a stronger legal posture than would agency action based on guidance alone. Rulemaking is also more durable than executive orders and agency guidance as repealing a regulation requires navigating the same APA process as initial adoption.
[14] Janus v AFSCME, 585 U.S. ___ (2018) at 48 (quoting Curtis Publishing Co. v Butts, 388 U. S. 130, 145 (1967)).
[15] Colleen O’Dea, “Conservative Group Sues Over NJ Limit on When People Can Quit Labor Unions” (NJSpotlight.com, Oct. 4, 2018), https://perma.cc/X72RR9KT.
[16] Sean Higgins, “Fraud alleged in Minnesota Homecare Provider Union” (Washington Examiner, March 4, 2017), https://perma.cc/6WAB-K33W.
[17] Gregg Re, “Workers Say Unions Defying Janus Ruling, Threaten New Court Action” (Fox News, Sept. 11, 2018), https://perma.cc/LZ6U-KZ72.
[18] For example, see: AFSCME Local 3299, University of California, https://perma.cc/2XX8-C2LU; SEIU Healthcare Florida Local 1991, https://perma.cc/WEY3-397G; AFSCME PEOPLE, https://perma.cc/L36K-6HXA.
[19] For example, see: UFCW Local 152 Enrollment Card, https://perma.cc/EY62-X2FS.
[20] “Homeland Security Presidential Directive 12: Policy for a Common Identification Standard for Federal Employees and Contractors” (U.S. Department of Homeland Security, Aug. 27, 2004), https://perma.cc/T6KB-KAWZ; Paul A. Grassi, Michael E. Garcia and James L. Fenton, “NIST Special Publication 800- 63-3: Digital Identity Guidelines” (National Institute of Standards and Technology, June 2017), https://perma.cc/E7Q3-PSP2; “Authentication in an Internet Banking Environment” (Federal Financial Institutions Examination Council, October 2005), https://perma.cc/BD9J-BQK3.
[21] Brian Knight, “Regulation by Guidance and Due Process: A Response by the Department of Justice” (Mercatus Center at George Mason University, Feb. 8, 2018), https://perma.cc/78SB-C7YF.
[22] “Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity (U.S. Department of Justice, December 2014), https://perma.cc/GCY8-CNFD.
[23] “Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools” (U.S. Department of Education, Feb. 7, 2003), https://perma.cc/7DQH-J8MD.
