A Virginia House bill that would give public-sector unions control over payroll deductions is being called unconstitutional by one of the attorneys who won the landmark Janus v. AFSCME case in the U.S. Supreme Court two years ago.
The House of Delegates passed House Bill 582 on Thursday, 54-45, sending it over to the Senate.
HB582 would end the state prohibition on public employee collective bargaining. Collective bargaining rights permit unions to have exclusive representation over workers in a working unit, even if a worker chooses not to join the union. This prevents individual workers from negotiating their own contracts. The bill also contains a provision that would give unions control of workers’ payroll deductions.
In 2018, the U.S. Supreme Court ruled in the Janus case that the forced collection of union dues from public-sector workers violated their constitutional rights to free speech and freedom of association. Jacob Huebert, one of the attorneys who argued the Janus case, has written a letter to Virginia lawmakers arguing that HB582’s provision to give unions the exclusive responsibility to deduct dues from workers violates the Janus precedent that requires affirmative consent.
“The bill would give unions the exclusive responsibility to receive and maintain authorizations for union dues deductions from employees’ paychecks as well as employees’ requests to cancel or change their dues authorizations,” Huebert wrote in letters to House Speaker Eileen Filler-Corn, D-Fairfax, and the bill’s sponsor, Del. Elizabeth Guzman, D-Dale City. “The union would not normally be required to provide the public employer with copies, or any evidence at all, of employees’ authorizations and requests. Instead, the public employer would simply take the union’s word for it that a given worker authorized deductions ‘unless a dispute arises about the existence or terms of that authorization’ – i.e., unless the worker specifically objects to a deduction, claiming that he or she did not authorize it.
"That is insufficient to comply with Janus’s affirmative consent requirement,” Huebert wrote.
Huebert said Janus’ precedent requires that the government has compelling evidence that a worker affirmatively consented to provide funds to the union, but that HB582 puts the burden on the worker to object to the dues before the union would need to provide evidence to the government.
“Under Janus, a worker should never have to take affirmative steps to exercise his or her First Amendment right not to join or pay a union,” Huebert wrote.
Neither Filler-Corn nor Guzman immediately responded to a request for comment on the letter.
The bill also would create a Public Employee Relations Board to regulate collective bargaining in the commonwealth.
The state Legislature is considering several bills that would impact right-to-work protections in the private sector, including a bill that would eliminate all of the state’s right-to-work protections and allow an employer to fire someone for choosing not to join a union.