How To ‘Tilt The Balance Of Power Back To Workers’ After Janus - For Example, Hawaii Lawmakers Are Considering Creating A Statewide Pot Of Money To Cover Public Sector Unions
If there is any agreement between the Right and the Left regarding the Supreme Court’s decision in Janus v AFSCME, it is that the ruling delivers a potentially crushing blow to Public Sector Unions across the country.
Before Janus, small automatic deductions could be debited from Workers’ paychecks to cover Union Bargaining Costs.
But after Janus, this is no longer an option.
The U.S. Supreme Court has ruled that requiring Union contributions violates the First Amendment.
So, as a matter of law, all Public Sector Workers are now free to opt out of paying Union Dues while still retaining the benefits of Union Representation.
Experts estimate that anywhere from 20% to 70% of those affected will stop paying - with significant negative effects on the ability of Unions to advocate for Workers’ interests.
However - this doomsday scenario is entirely avoidable.
Lawmakers in the 22 States that permitted Public Sector Unions to collect Fair Share Fees before Janus can enact a simple legislative workaround that would neutralize essentially all of Janus’ impact.
Most of these States are Blue and ostensibly are Pro-Labor, so they should jump at the opportunity.
Instead of deducting Union Dues from paychecks to reimburse Union Bargaining-related costs, government employers - fire departments, school districts, etc. - could be required to reimburse those expenses directly.
Workers who previously objected would no longer have an issue and Unions would still enjoy the same, pre-Janus level of resources needed to carry out their representational activities.
And - it gets better.
There is a hidden benefit to this “Direct Reimbursement” approach: Workers would actually experience a small net pay increase.
The pre-Janus approach created an extra tax burden that would be alleviated.
Union Fees formally counted as wages (even though they never made it into Employees’ bank accounts), so Workers were paying taxes on the money that funded the Union.
The Direct Reimbursement approach would eliminate that oddity, resulting in a roughly a $200 tax cut for an unmarried Worker who earns $50,000 a year.
A Worker earning $60,000 would get a $300 tax cut.
If direct government reimbursement of Union Bargaining-related expenses sounds far-fetched to you, it shouldn’t.
State lawmakers in Hawaii are already considering a government funding bill that would create a statewide pot of money (think of it as a “Janus Fund”) to ensure Public Sector Unions have the resources they need to bargain.
Some States may prefer a statewide response like Hawaii’s.
Others, an employer-by-employer approach - which would be more similar to the pre-Janus Fair-Share System.
One note of caution: Whatever approach states choose, it will be important for legislators to enact procedures to ensure Unions remain fully independent from their government employers at the bargaining table - even though those employers are reimbursing bargaining costs.
For example, rather than letting employers negotiate over Union reimbursement levels alongside wage increases, employers could be required to reimburse Unions for all bargaining-related expenses (the same costs that could be charged to all Workers before Janus), with disputes resolved by a State Public Employment Relations Board.
I explore these design questions and others - including proposing some model legislation - in “Life After Janus,” a full-length article posted on the Social Science Research Network.
The lesson is that Janus is only as big a problem as progressive lawmakers want it to be.
There is a ready-made solution - if only they are willing to act.
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