While Taft-Hartley had a significant impact on private sector workers, it had no effect on their peers in the public sector. That’s because the NLRA leaves the issue of public sector labor law solely to the states. State laws on public sector unions vary greatly: Some prohibit collective bargaining by government employees altogether, while others maintain robust pro-union legal regimes.[*] State legislatures determined whether public sector employees had right-to-work protections, but that changed in 2018 with the U.S. Supreme Court’s landmark decision in Janus v. AFSCME.
This case arose when Mark Janus, who was employed by the state of Illinois, objected to being forced to pay agency fees to keep his job. Janus did not support many of the political positions and policies endorsed by his union and argued that forcing him to support those policies violated his First Amendment rights. Despite exercising his Beck rights, Janus argued that because he was a public employee even the terms of his employment were political. Thus, Janus reasoned, when the union was negotiating on his behalf, it was engaged in political activity on his behalf. Janus maintained that, under the First Amendment, he could not be forced to subsidize the union’s political speech.
Janus’ union, the American Federation of State, County, and Municipal Employees disagreed. AFSCME argued that agency fees were necessary to avoid being forced to represent “free riders,” an argument that had prevailed in the Supreme Court’s 1977 Abood v. Detroit Board of Education decision.
The Court agreed to reevaluate the Abood decision when it accepted Janus’ case and ultimately overruled it. Justice Alito wrote the majority opinion, which held that all activity undertaken by a public sector union was inherently political, and any financial support of a government union would constitute political speech. Having reached that conclusion, the Court recognized that all public sector workers had a First Amendment right to opt out of paying agency fees.
The Court’s decision also established the constitutional standard that would have to be met for employees to waive this right and pay a public sector union. The Court ruled, “[E]mployees [must] clearly and affirmatively consent before any money is taken from them.” The meaning of clear and affirmative consent can be gleaned from other cases decided by the Court. These cases determined that decisions to waive constitutional rights must be a “knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” Such waivers must also be done with “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Based on these cases, the Janus decision requires public sector employees to know both what their rights are, and the consequences of waiving those rights, before agreeing to pay a union.
Janus rendered all states right-to-work for purposes of public sector employment. While individual states retain the right to regulate public sector employees in other ways, and private sector employees remain subject to the NLRA, the Janus decision established right-to-work protections for public employees throughout the country as a matter of constitutional law.
[*] South Carolina has not authorized collective bargaining for public sector employees. See, Branch v. City of Myrtle Beach, 340 S.C. 405, 411 (2000). California, on the other hand, has implemented collective bargaining for a wide variety of government employees. See, e.g., “Laws” (California Public Employment Relations Board, 2023), https://perma.cc/SR6U-FNHP.