supremecourtbuilding-150x150-2862480As of yesterday, New York’s government employers can no longer deduct dues-like “agency fees” from government employees who haven’t joined a union, even if the union involved has a contract requiring them.

That’s the upshot of the Supreme Court ruling in Janus v. AFSCME, which nullifies the state’s agency-fee laws, which date back as far as 1977, and affects about 1,700 public entities in New York that were previously deducting fees.

The Supreme Court decision also calls into question the constitutionality of a newly enacted state law designed to make it more difficult for New York public employees to quit paying union dues.

Fee simple

For public-sector unions in New York and 22 other states with laws favoring those unions, the agency fee era is over. Justice Samuel Alito, who wrote the opinion for the 5-4 court majority, couldn’t have been more explicit on this point.

“States and public-sector unions may no longer extract agency fees from nonconsenting employees,” Alito wrote.

We estimated in our recent “Janus Stakes” report that public employers in New York have been extracting $112 million a year in agency fees from 200,000 government workers.

The question now is whether government agencies will obey the law and knock it off—which will also reduce the revenue flow to unions.

For state government, New York City and other large public employers, compliance should be simple—and immediate. But it will be more complicated for many if not most smaller government entities across the state, which apparently lack sufficient records to differentiate between union members and agency fee-payers.

Dues or don’ts

Beyond fees, there’s an even larger pool of money at stake. Last year, about one million New York government union members paid roughly $750 million in dues. When hired, most government employees signed unions cards assuming they’d have to pay the union one way or another. In the wake of Janus, they now have the option of paying nothing, without affecting their employment status or their entitlement to contractual pay and benefits.

A senior official at CSEA, one of the state’s largest government unions, last month said face-to-face conversations with workers were yielding commitments to remain in the union less than 85 percent of the time. This matches estimates by AFSCME, CSEA’s parent union, that 15 percent of workers would leave the union immediately (and that another 50 percent would consider it). In Michigan, about one in five teachers left the union after agency fees were abolished by a 2012 law.

As part of the state budget, Governor Cuomo and state lawmakers enacted legislation designed to make it harder for government workers to immediately opt out. The unions, in turn, have placed restrictions such as narrow time windows outside of which withdrawal requests will be ignored.

But the new budget provision appears to be unconstitutional under the Janus ruling. From Alito’s opinion:

Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. [emphasis added]

The present tense of “consent” is important here, because it implies a prospective choice, occurring from this point forward. It won’t be enough for a union to claim that someone has “consented” to paying dues in the past.

What is “consent”?

The ruling also presented interesting questions about union membership cards themselves.

Alito wrote:

By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver 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.

On its face, this new dictum applies to states where union membership is automatic. In New York, however, the Taylor Law (Civil Service Law Article 14, 208.1b) has always treated membership as optional, stipulating that dues deduction shall begin “upon presentation” of signed authorization cards.

But do the membership cards signed by New York workers meet the standard of “clear and compelling evidence” that workers have “clearly and affirmatively” consented to waiving First Amendment rights?  The answer in all cases is almost certainly no.

Unlike private-sector unions that file annual reports* with the U.S. Department of Labor, New York’s government unions are notoriously opaque. Even other union-heavy states, such as Connecticut, let workers examine union records kept by state regulators but withheld from the general public. In New York, government union members don’t have a statutory right to see union financial statements, let alone detailed expenditure reports—and unions aren’t required to file anything with the state. This begs the question: can a worker grant clear and affirmative consent to finance something when they can’t see where the money is going?


*Some New York government unions, such as CSEA and PEF, file LM-2 reports with the USDOL because they represent at least one local private-sector unit and thus fall under federal reporting requirements.

About the Author

Ken Girardin

Ken Girardin is the Empire Center’s Director of Strategic Initiatives.

Read more by Ken Girardin

You may also like

Remembering the scandal that brought down Health Commissioner Howard Zucker

The resignation of Dr. Howard Zucker as state health commissioner marks the end of a term marred by scandal over his role in managing the coronavirus pandemic. The much-debated compelling nursing homes to admit COVID-positive patients, though it origi Read More

After 10 weeks, all but five of the Empire Center’s 63 requests for pandemic data remain unfulfilled

Over the 10 days that Hochul has been in office, there has been no further progress on the Empire Center's record requests. Read More

New York’s health benefits remain the second-costliest in the U.S.

New York's health benefit costs increased faster than the national average in 2020, leaving it with the second-least affordable coverage in the U.S. The state's average total cost f Read More

Another Hochul To-Do: Timely Financial Reporting

The state will spend a record $212 billion in the current 2022 Fiscal Year, under the budget its elected leaders adopted in April. Read More

Can Cuomo still be impeached?

Andrew Cuomo and Donald Trump have more in common than boyhood homes in Queens. Like Trump, Cuomo could still face impeachment and an impeachment trial despite a promise to resign as Governor later this month. Read More

The Gov’s pension

There are several (dozens? hundreds?) of unanswered questions as the fallout from Andrew Cuomo's resignation earlier today continues. Among those are questions related to his pension, some of which can be answered, sort of. Read More

The Health Department’s FOIL Responses Signal an Indefinite Wait for Pandemic Data

The quest for comprehensive data on New York's coronavirus pandemic hit a bureaucratic roadblock this week Read More

A Study of COVID-19 in Nursing Homes Raises Doubt About New York’s Minimum Staffing Law

A newly published study of COVID-19 in nursing homes links larger numbers of employees to higher rates of infection and death for residents – raising fresh doubts about New York's recently enacted "safe staffing" law. Read More

Subscribe

Sign up to receive updates about Empire Center research, news and events in your email.

CONTACT INFORMATION

Empire Center for Public Policy
30 South Pearl St.
Suite 1210
Albany, NY 12207

Phone: 518-434-3100

General Inquiries: Info@EmpireCenter.org

Press Inquiries: Press@EmpireCenter.org

About

The Empire Center is an independent, non-partisan, non-profit think tank located in Albany, New York. Our mission is to make New York a better place to live and work by promoting public policy reforms grounded in free-market principles, personal responsibility, and the ideals of effective and accountable government.

Empire Center Logo Enjoying our work? Sign up for email alerts on our latest news and research.
Together, we can make New York a better place to live and work!