A 62-year old cop in the small Rhode Island town of Warren has finally taken retirement after 22 years on sick leave. Legal wrangling went on over that period, during which the police detective could “receive his full pay and benefits, but never come to work.” He pointed to a state law guaranteeing full pay and benefits to officers injured on the job until they return to work. Warren has just 22 cops on its force and felt his approximate $114,000 in salary and benefits to be a burden. [Parker Gavigan, NBC 10 News]
In the 2018 Janus decision, the Supreme Court ruled that the First Amendment protects individual public employees from having to financially support unions to which they do not wish to belong. But labor law continues to require “exclusive representation”; individual public employees may not bargain on their own behalf in place of the designated union, nor may they enlist a different union to represent their interests. (Meanwhile, and also problematically, incumbent unions are tasked with a legal duty to represent individual employees even if they reject membership and decline to pay dues.) Jonathan Reisman is an economics professor at the University of Maine-Machias who does not wish to be represented by the recognized faculty union, which he does not believe represents his own priorities either on work-specific issues such as wages and schedules or on public policy more broadly. Reisman is now seeking Supreme Court review of his action seeking relief from exclusive representation on First Amendment grounds [Trevor Burrus and Michael Collins on Cato certiorari amicus brief in Reisman v. Associated Faculties of the University of Maine]
New York State has agreed to pay $6 million to settle claims that disabled residents of a Bronx group home for developmentally disabled adults were physically abused and neglected by staff, and the state has also spent a further $5.7 million thus far defending the staff members in court [Benjamin Weiser, New York Times] However, don’t assume that any public employees lost their jobs:
A state investigation later substantiated allegations of misconduct by 13 workers.
But the state failed to fire any of the employees, The New York Times reported in June.
A state arbitration process shielded the workers who had been cited for abuse and neglect. They were typically sent to other jobs in the system.
As part of the settlement, lawyers representing families insisted that the group home be removed from the control of the New York state government. [cross-posted at Cato at Liberty with some additional comments on privatization and accountability]
- States increase pension crisis with payouts for unused vacation and sick time [Steve Malanga, City Journal] “The Politics of Public Pension Boards” [Daniel DiSalvo, Manhattan Institute last year]
- State personnel board ordered reinstatement: “San Jose State cop fired after beating gets job back, now with Los Gatos police” [Robert Salonga, East Bay Times via Peter Bonilla]
- Time for the bizarre “California Rule” on pensions to go [public employers may not reduce future pension benefits even when based on work not yet performed; Carol M. Matheis, Federalist Society last year, earlier here and here] “Why California’s Pensions Only Deepen Inequality” [Joe Mathews, Zocalo Public Square] “Some L.A. pensions are so huge they exceed IRS limits, costing taxpayers millions extra” [Jack Dolan, Los Angeles Times, last December]
- “You’re Not Fired: Do Civil Servants Have a Property Interest in Their Job?” [Federalist Society animated Policy Brief with Greg Jacob]
- Court opinions and administration actions are restricting push-button access to dues from home health care workers and unions aren’t happy about that [Steven Malanga, City Journal]
- California Teachers Association, Service Employees International Union push initiative to end Proposition 13 limits on commercial property taxation [Steven Greenhut, Reason]
A very Illinois situation: “An Illinois union lobbyist can keep the public pension windfall he qualified for by spending one day as a substitute teaching, the Illinois Supreme Court has ruled.” [Ray Long, Chicago Tribune via its Twitter]
More on Illinois public employee pensions: “More than 19,000 Illinois Government Retirees Receive Pensions Over $100K” [Janelle Cammenga, Illinois Policy] “Mapping the $100,000+ Illinois Teacher Pensions Costing Taxpayers Nearly $1.0 Billion” [Adam Andrzejewski, Forbes 2016] “Top 200 Illinois Municipal Retirement Fund Pensions as of 2017” [Taxpayers United (park district employees score highly in $150K+ annual pension listings)] (via @TwoBoysCapital on Twitter)
Meanwhile, so delightfully Chicago: “JUST IN: Lawyer for ex-Ald. Willie Cochran ask for six months home confinement, saying ‘”since sending previous aldermen to jail has not done anything to curb Chicago’s tidal wave of aldermanic corruption cases, there is no reason to think that sending Mr. Cochran to jail will.'” [Chicago Tribune reporter Jason Meisner on Twitter]
The Supreme Court’s Janus decision on public sector union fees was not received in a spirit of total cooperation by all public sector unions and employers. Two Cato Daily Podcasts from late last year, one with Robert Alt of the Buckeye Institute, the other with Ken Girardin of The Empire Center:
And now, citing the First Amendment and the Janus precedent, “three conservative lawyers are seeking to overturn Texas laws that require attorneys to join the State Bar of Texas and pay annual dues;” in Texas, as in many states, bar dues go to various ideologically fraught issues and causes [Chuck Lindell, Austin American-Statesman]
Just for fun: Cato’s amicus brief in Janus v. AFSCME is an answer on Jeopardy!
- Social justice education: on the march and coming to a school system near you [Frederick M. Hess and Grant Addison, National Review]
- New wave of institutional reform litigation aims to replace democratic oversight of public schools with governance by courts, lawyers, and NGOs [Dana Goldstein, New York Times]
- Texas Attorney General Ken Paxton, trying to force a student to stand for the Pledge of Allegiance, ignores 75 years of Supreme Court precedent [Scott Shackford] “My Daughter’s Middle School Plans to Teach Her Meek Compliance With Indiscriminate Invasions of Privacy” [Jacob Sullum]
- “The Regressive Effects of Child-Care Regulations: More strenuous requirements raise child-care prices but have little apparent effect on quality” [Ryan Bourne, Regulation and Governing]
- “Denver Schools Stopped ‘Lunch-Shaming’ Kids Whose Parents Didn’t Pay. The Results Were Predictable.” [Hess and Addison]
- Wisconsin public union reform: “A school district’s implementation of Act 10 is associated with an increase in math proficiency on average. The positive impact … is consistent across small town, rural, and suburban school districts.” [Will Flanders and Collin Roth, Wisconsin Institute for Law and Liberty]
- “Look to the Dutch for true educational pluralism” [Charles Glenn, Acton Institute]
- “Why It Was Proper (and Necessary) to Overturn Old Precedent” [Ilya Shapiro and Aaron Barnes, Cato, earlier on Janus v. AFSCME case]
- Mackinac Center has launched national exit-encouraging campaign [My Pay My Say] Class action suits in several states against government unions seek refund of fees paid [Bill McMorris, Free Beacon]
- Proposal to have public employers simply pay unions directly could eliminate workers’ choice in the matter [Benjamin Sachs and Sharon Block, Vox (favoring idea); Eugene Volokh]
- “California’s Government Unions Take Steps to Obliterate Janus Impact” [Edward Ring, California Policy Center, earlier on California aftermaths]
- “How NY will thwart Janus rights” [Ken Girardin, Empire Center; Eric Boehm; earlier on evasion] When right to work came in, “Michigan unions didn’t simply refrain from identifying the exits. They actively worked to make leaving difficult and onerous.” [Joseph G. Lehman and John R. LaPlante, USA Today]
- And now for something completely different: “After Janus, Conservatives and Teachers’ Unions Should Collaborate” [Max Eden; Erica L. Green, New York Times on how American Federation of Teachers is coping with decision]
The Third Circuit has ruled that TSA (Transportation Security Administration) screeners are largely immune from being sued for overly intrusive handling of travelers’ persons, false imprisonment, and similar offenses. “The majority said it was ‘sympathetic’ to concerns that its decision would leave fliers with ‘very limited legal redress'” for abuse, but said its hands were tied by the terms of the Federal Tort Claims Act (FTCA); TSA screeners, it said, were shielded from liability because they were not “investigative or law enforcement officers” but more akin to — and I am not making this up — federal meat inspectors. [Jonathan Stempel, Reuters; Fredrick Kunkle, Washington Post (meat inspector reference; court “acknowledged that as a result, passengers have very limited legal options even in the face of outrageous TSA misconduct.”); Pellegrino v. TSA]
In yesterday’s Janus v. AFSCME Council 31, the Supreme Court ruled in an opinion by Justice Samuel Alito that the practice of requiring public employees to pay “agency fees” to unions to engage in collective bargaining, including the pursuit of demands concerning workplace policy that may be antithetical to the worker’s own views, is a violation of the First Amendment’s restrictions on compelled speech. The ruling was 5-4 along conservative-liberal lines.
In her dissent on behalf of the four liberals, Justice Elena Kagan outlined the so-called free-rider problem that has been said to justify requiring public employees to pay union fees [citation to 1991 paper omitted]:
Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations.
The free-rider argument is a weak one on its own terms, even if you leave aside Justice Alito’s observation for the majority that free-rider economic arguments are ordinarily not expected to override First Amendment concerns. To begin with, unions not only still exist in the U.S. states (a majority) that have enacted “right to work” laws curbing agency fees, but sometimes wield much political clout. Janus does not spell a death knell for public unions that provide their members with value.
Moreover, as Cato scholars Trevor Burrus and Reilly Stephens have pointed out, European unions have developed along somewhat different institutional lines: they rely less on models of exclusive bargaining representation and more on collective social representation and solidarity (often linked to direct involvement in provision of fringe benefits and other valued services). Far from being weakened by their departure from the “American” model of exclusive collective representation, they seem to be in many ways more formidable than are American unions.
Expect state and local governments that are closely allied with the political interests of unions to scramble now to enact measures meant to evade Janus. Here is a description of what just happened in California, from Joel Fox at the political site Fox and Hounds:
SB 866 would cement union control over access to individual employee decisions on whether to continue paying union dues, should mandatory agency fees be deemed unconstitutional. …Key elements of the bill include:
- Requiring for any school teacher, state firefighter, college professor, prison guard, environmental regulator, or any of the hundreds of other classes of state and school employees who may wish to reduce or eliminate their mandatory union dues, that they make this request exclusively to the union rather than to their employer.
- Unions would not be required to provide the actual authorizations for dues deduction to the school board or State Controller, but instead would merely certify to the public agency’s payroll department as to who is or is not paying union dues. Public employers must rely on the unions’ representations regarding dues deductions.
- Unions would indemnify public employers over claims made by individual employees for deductions made in reliance on union representations.
- Employees would be prohibited from contacting their employer directly regarding union dues deductions.
- A public employer may not send mail or email to its employees, or provide an oral presentation, about their right to join or refrain from joining a union, unless the employer facilitates delivery of similar messages from the union.
- Government employee unions currently have access to orientation sessions for new employees. This bill would limit disclosure of the date, time and place of these sessions to the employees and unions only. Members of the public and taxpayers would be kept in the dark about meetings of public officials.
If signed by Governor Brown, the measure would take effect immediately.
The California bill was rushed through both houses in quickstep fashion as a budget trailer bill and was signed by Gov. Brown yesterday. Note, however, that section VII of Alito’s opinion, by requiring affirmative consent for fee withholding rather than allowing assumed waiver, could foil some of the scheme above.
Note also our March post on how unions may be planning to reclassify some workers from public to private in order to get around Janus, including workers who had earlier been reclassified from private to public to benefit the same unions.
[cross-posted and expanded from Cato at Liberty] More: earlier, Roger Pilon, Ilya Shapiro (“Today’s decision at long last remedies this violation of all workers’ rights to the freedom of speech and association”), Cato podcast with Caleb Brown and Trevor Burrus.