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Minnesota Continues to Violate Public Employee Speech Rights

The Center launched the Employee Freedom Project late in 2015. The goal was to alert public employees, the citizenry and elected officials not only about the dominant role public-sector unions have come to play in setting public policy and electing the officials who govern our lives but to expose how public employees were being forced to fund the political agenda and political preferences of government unions.

Since then, some very good things have happened but much is left to be done.

A remarkable school teacher from California named Rebecca Friedrichs nearly won the right of public employees to choose whether to financially support the union in their workplace. Her First Amendment case, which argued that all collective bargaining was political speech, faltered after the death of Justice Scalia in 2016 but another brave plaintiff stepped up to take her place. On June 27 in 2018, a social worker from Illinois named Mark Janus, convinced the U.S. Supreme Court (Janus v AFSCME, 5-4) that forced union dues, which had been the law of land since 1977, violated the constitutional rights of employees. Why? Because American citizens cannot be forced to finance the political speech of a third party.

Imagine if you were forced to fund a church or political party. Now imagine if you were forced to fund a church or political party as a condition of employment.

This is why forced union dues were especially pernicious; public employees had to agree to fund the union if they wanted to take or keep their job. And they are called “free riders” or “scabs” if they refuse.

Why the Supreme Court thought in 1977 that this was an acceptable “impingement” of the First Amendment has been criticized and defended at great length but the Court’s majority said the 1977 precedent was “poorly reasoned” and “an outlier among the Court’s First Amendment cases.”

The court in Janus vindicated the critics, but the damage done to the rights of employees, our civic discourse and our nation are impossible to calculate as government unions grew in power over four decades, assured of a steady stream of revenue that increased each year as unions successfully bargained, from both sides of the table, for more government, more spending and no accountability. The nation has been forever deformed by the forced funding of this third party interloper into our civic life. Talk about rigged!

Untold billions have been forcibly transferred from employee paychecks into the coffers of unions which now serve almost exclusively as agents of the far left and “progressive” wing of the Democratic party. This is the angry “no borders” and “identity politics’ crowd that calls out anyone and everything it does not like a “racist.” This is the well-funded machine that has left public pensions wildly underfunded, and squelched speech and a civil conversation for far too long.

The unions liked their guaranteed revenue and they are doing everything in their power to close the exits.

The Janus ruling affects about two hundred thousand Minnesotans in public sector jobs. Nearly all K-12 teachers (except for all but three unionized charter schools), about 89 percent of Minnesota’s state employees and 54 percent of municipal employees are represented by a union. In most cases, the employee never had a chance to vote for or against a union. It just comes with the job. And so did union fees or dues until last summer.

Did the Center declare victory and move on to the next challenge? Not even close!

The State of Minnesota, under its current leadership, is no hurry to tell employees about their restored First Amendment rights. But even if the GOP were running the state, leadership would probably tread lightly to fully enforce the Janus ruling because the unions are still raking in the money, which they do not hesitate to use against any politician who does not tow the line. As the Wall Street Journal noted last week, a year after Janus, most employees have not even heard about the case (or what they have heard makes it sound evil) and the employees who have heard about Janus and tried to resign are hitting all kinds of walls as they try to exit union membership (WSJ “Still Paying Coerced Labor Dues, Even After Janus” July 27, 2019).

That is why the Center built infrastructure to reach employees to tell them about Janus, answer concerns and questions, and provide practical advice and tools for resigning from the union. (We note that if you were a “fair share” agency fee payer, your employer stopped deducting fees as of July 1, 2018 unless you subsequently joined the union as a full member.)

Teachers represented by Education Minnesota have a website (EducatedTeachersMN.com) that includes research on the teachers union (the history of the union, how it spends about $57 million a year in revenue taken from teacher paychecks, the high salaries at the union and other topics).

Other public employees (represented by AFSCME, SEIU, MAPE and assorted AFL-CIO and Teamsters affiliates) have their own dedicated website (EmployeeFreedomMN.com).

The big news for teachers is that the Center’s efforts have blown open the resignation window from a narrow 7 days in September to thirty days. That is not good enough constitutionally because the Court said in Janus that employees have to give their affirmative consent before any money can be taken from them (i.e. they have to opt into the union, not be forced to opt out) but big things take time and we view the 30-day window a good incremental step forward.

We urge public employees to sign up for emails and get informed so they can make up their own minds about whether to financially support the agenda of their workplace union. Please share this post with any public employees you know.

The Center is also pursuing litigation on behalf of public employees. Teachers like Linda Hoekman who were forced to pay agency fees against their wishes are pursuing a refund, and union members who tried to resign following Janus but hit a wall, are taking their case to the courts.

For example, Laura Loescher is a school-age child care site manager at Scandia Elementary School in the Forest Lake Public School District and a member of the Teamsters Local 320. Laura joined the union believing that her only options were to become a member and pay dues, pay fair-share fees, or be fired. After the U.S. Supreme Court decision in Janus, Laura attempted to resign from the union by following the extensive process the Teamsters outlined. The union refused to recognize her resignation and insisted that Laura’s employer continue to deduct dues from her pay. In retaliation, the Teamsters also stripped her of her ability to participate in contract ratification and other rights, despite the fact that she remains a member of the union.

The Center is partnering with the Upper Midwest Law Center and Liberty Justice Center (which represented Mark Janus) to enforce the Janus Rights of Minnesota’s public-sector employees like Linda Hoekman and Laura Loescher. We are also notifying public employers and Gov. Walz of their duty to inform employees of their Janus Rights and warning them that there will be hell to pay for ignoring the First Amendment rights of the employees they all claim to respect.

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