Government Unions are Down — But Not Out

In 2018, the U.S. Supreme Court humbled public sector union officials accustomed to taking advantage of the public employees they were supposed to serve. In Janus v. AFSCME, the court overturned a decades-old precedent that once forced public employees to pay union dues as a condition of employment.

After Janus, more public sector employees exercised their constitutional right to associate freely. Since 2018, the four largest government unions — the American Federation of Teachers (AFT), the American Federation of State, County, and Municipal Employees (AFSCME), the National Education Association (NEA), and the Service Employees International Union (SEIU) — have lost more than 380,000 fee payers and 320,000 members.

These huge membership drops have hit the big four’s bottom line. Collectively, lost members and fee payers cost AFT, AFSCME, NEA, and SEIU an estimated $106.8 million annually. (READ MORE from David R. Osborne: Unions’ Hypocrisy on Progressive Income Tax Hikes)

Government unions may be down, but you can’t discount their influence. Moreover, since Janus, public sector unions have campaigned to regain ground.

For nearly a decade, the Commonwealth Foundation has tracked state-by-state changes in labor laws. Every two years, the Commonwealth Foundation releases its research on the ever-changing legal landscape for public sector unions, assessing each state’s efforts to promote public employees’ rights or cave to unions’ entrenched influence.

This fourth edition examines government unions’ attempts, following Janus,  to hold onto and expand special legal privileges under state laws. The research also highlights the states reining in government unions’ power and influence by empowering workers.

Down But Not Out

Though Janus landed a well-deserved punch, government unions are not down for the count.

Union executives — especially those who flood state legislatures with endless campaign donations — remain focused on rebuilding membership numbers by securing legislative permission to pressure public employees. As a result, public employees in states like Illinois, Maryland, and Michigan are more exposed than ever to overreaching government union officials set on building their power and influence — even at workers’ expense.

What follows are some recent legal changes threatening worker freedom nationwide.

Right to Collective Bargaining

During the 2022 midterms, Illinois voters passed Amendment 1, with 59 percent supporting it. This amendment created a constitutional right to collective bargaining. The Illinois Constitution now prohibits any new law that “interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and workplace safety.”

Amendment 1 provided everything union executives needed to solidify their power. The amendment helped them make the case for unrestricted collective bargaining, placing labor contracts above the law. The Chicago Teachers Union has already taken advantage, making contract demands that were previously untenable.

Amendment 1 also served as a template for union executives in other states dominated by public sector union influence. Similar amendments with similar language have popped up in Iowa, Minnesota, Vermont, and Pennsylvania. Thus far, these copycat amendments have yet to become law, but union executives will prioritize this approach based on the results in Illinois.

Trigger Laws and Fair Share Fees

Janus prohibited government unions from forcing employees to pay dues or fees as a condition of employment. However, in Michigan, union executives secured a first-of-its-kind “trigger law” that would go into effect if something ever happened to Janus.

Michigan would immediately revert to the unconstitutional scheme where union officials could force government employees to pay “fair share” fees if they declined to join. Unfortunately, the law also allows union executives to include confusing provisions in workers’ contracts that make these fees appear compulsory.

This deception may mislead employees into becoming members, believing union payments are inevitable, even under current law.

Gathering Personal Information

Since Janus, 14 states passed legislation allowing government unions to gather government employees’ personal information.

This invasive strategy provides executives with unprecedented access to employees. Now, union executives can more easily pressure employees to support their bargaining or political objectives.

While this tactic may benefit union executives, it risks employee privacy. In 2017, California enacted Chapter 21, permitting government unions “meaningful access to their represented members.”

Seven years later, criminals hacked into a California union’s database, which housed government employees’ social security numbers and home addresses. (READ MORE: Public Sector Unions Aren’t Doing Well)

Despite these obvious security risks, states continue to expand union executives’ access to employees’ private information.

Tax Incentives for Union Dues

Union-friendly legislatures have also enacted favorable tax incentives for union dues.

Maryland and Delaware now allow union members to deduct their dues. While Delaware caps the benefit at $500, Maryland union members can deduct the full amount from their state taxes. California offers a tax credit for union dues, a far greater benefit than a tax deduction.

These tax policies incentivize membership, removing cost as a barrier. However, taxpayers end up paying the tab. This pattern will spiral downward, where union executives can raise dues amounts — without immediate consequence to membership — by pushing any increased cost of union membership on the public.

Unionizing New Workplaces

Several states have expanded the number of workplaces eligible for unionization — and they aren’t exactly blue-collar professions.

California allowed legislative staffers to unionize. Washington added management employees and student workers at public universities. Michigan and Maryland extended the right to certain supervisory employees.

These expansions, which would have been unthinkable to unions decades ago, distort the incentives for public officials and employees alike. The biggest winners are union executives collecting more in membership dues.

Don’t Call It a Comeback

While union executives have found favorable conditions in states like Maryland and Michigan, other states — such as Florida, Kentucky, and Arkansas — have countered with legislation that enhances union accountability and worker freedom.

Paycheck Protection

Union officials love direct access to members’ paychecks. This way, collecting dues and fees is easier.

Michigan union executives successfully lobbied to repeal the state’s paycheck protection law. Now, Michigan government unions can collect dues and political action committee deductions via the public payroll.

Fortunately, more states went in the opposite direction of Michigan. Since Janus, seven states have passed paycheck protection legislation, restricting or outright prohibiting unions’ use of public payrolls for dues and fees collection.

Florida’s law, for example, offers the most protective version. In addition to prohibiting any dues and fee collection via the public payroll, Florida lawmakers also added an accountability measure, requiring union recruiters to provide crucial information to employees and to secure their “affirmative consent” before they join.

Kentucky passed a similar measure, but Gov. Andy Beshear vetoed it. Thankfully, the state legislature overrode the veto.

Arkansas and Tennessee targeted teacher unions. Both states now prohibit school districts from deducting union dues and fees. Despite this setback to the unions, Arkansas and Tennessee teachers still received pay increases.

By cutting off this direct access, paycheck protection laws spare taxpayers the cost of something unions should do on their dime.

Union Recertification

Recertification imposes democratic standards on unions. This practice proved successful in Wisconsin, where state lawmakers passed sweeping labor reforms in 2011.

The Sunshine State also stepped up. Florida now requires unions to stand for election when membership drops below 60 percent of union-eligible employees. Unpopular unions — many representing workplaces with less than 30 percent union membership — are already losing their certifications.

Right to Resign

Since Janus, labor reformers have strived to statutorily recognize workers’ rights to resign their membership. After all, if you can’t resign your union membership, it’s hard to exercise your right not to subsidize union political activity.

Since 2022, five states — Florida, Arkansas, Louisiana, Montana, and Pennsylvania — have introduced right-to-resign legislation. However, only Florida signed its version into law.

Currently, six states statutorily recognize this right.

Florida: The Gold Standard

Florida has become the gold standard. Not since the days of Wisconsin’s famous Act 10 in 2011 has there been a state so successful at reining in government unions’ power.

Florida’s Chapter 2023-35, signed on May 9, 2023, is a true win for public employees and taxpayers. In addition to recertification, paycheck protection, and the right to resign, this sweeping Florida law requires union executives to notify workers of their rights. Moreover, it benefits taxpayers by making unions responsible for due and fee collections rather than the taxpayer-funded public payroll system.

Because of these sweeping reforms, the Commonwealth Foundation boosted Florida from a “C” two years ago to an “A” in our recent report. Other states should look to Florida as an example of how to stem government union overreach, while protecting workers and taxpayers.

Navigating the Post-Janus World

Though it changed the legal landscape, Janus was not a panacea. Government unions still have ample resources emboldening executives at the expense of individual workers.

Lawmakers cannot rest on their laurels. Safeguarding workers and taxpayers begins with several reforms, such as payment protection and recertification. Moreover, limiting and prohibiting other activities — leveraging tax incentives for dues, collecting personal information, and unionizing new workplaces — is of the utmost importance.

As these nationwide efforts evolve, American workers and taxpayers depend on our laboratories of democracy to safeguard their rights and enhance accountability and transparency.

David R. Osborne is the Senior Fellow of Labor Policy and Andrew Holman is a Policy Analyst with the Commonwealth Foundation, Pennsylvania’s free-market think tank.

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