Governor Sisolak should rectify Nevada’s unconstitutional government-union dues scheme

This article originally appeared in the Reno Gazette-Journal.

As the state begins its months-long process of resuming normal activities, Nevadans continue to struggle with the financial impact of a shuttered economy.

Accordingly, Governor Sisolak should take immediate action to ease the financial strain on thousands of the state’s public employees by temporarily suspending union dues — especially because the way unions are currently collecting such dues is unconstitutional and a violation of workers’ First Amendment rights.

A suspension of public-sector union dues would keep millions in the wallets of Nevada’s local-government workers and boost the state’s economy —— without costing taxpayers a dime — precisely when Nevadans need it most.

More important, however, are the legal implications which underscore this proposal. The governor should act now in order to rectify Nevada’s constitutionally-defective scheme of deducting dues from workers’ paychecks.

As determined by the landmark 2018 Supreme Court case Janus v. AFSCME, it is unconstitutional for any government-sector union to deduct dues from workers’ paychecks unless those workers have affirmatively consented to waiving their First Amendment rights. A majority of justices deemed such a waiver — “freely given and shown by ‘clear and compelling’ evidence” — necessary due to the inherently political nature of union activism, which is directly subsidized by membership fees.

Writing for the majority, Justice Alito remarked that schemes which take dues from workers’ paychecks without first acquiring affirmative consent “violate the First Amendment and cannot continue.”

The justice elaborated: “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.” (Emphasis added.)

By this standard — which is now the law of the land — the dues-deduction schemes governing public employees across the state are blatantly unconstitutional. No current government-union members in Nevada ever met this standard when agreeing to union membership because they were never instructed that paying money to a union would constitute a waiver of their free-speech rights.

That fact notwithstanding, it has been nearly two years since Janus was correctly decided, yet public-sector unions in Nevada have taken no action whatsoever to conform their dues-collection policies with the requirements of the United States Constitution.

Perhaps the state’s leaders are merely awaiting policy guidance on the matter? If such is the case, Governor Sisolak should follow Alaska’s lead, where in September 2019, Governor Michael Dunleavy ordered a revamping of his state’s “opt-in” and “opt-out” policies for union membership. His order specifically requires that all “‘opt-in’ dues authorization forms must clearly inform employees that they are waiving their First Amendment right not to pay union dues or fees and thereby not to associate with the union’s speech.”

Governor Sisolak should follow suit and not further delay compliance. It is entirely appropriate to suspend union dues until such a time when systems are in place to fully inform public employees of the implications of financially supporting a union. Our state’s public servants, after all, are entitled to a clear understanding of the costs and benefits of union membership — particularly given the economic uncertainty which lies in the months and years ahead, as union dues take hundreds from workers’ paychecks each year.

Nevada’s public employees need Governor Sisolak to act immediately as they navigate the economic ruin left in the wake of the COVID-19 crisis.

More importantly, the United States Constitution demands it.

Daniel Honchariw is the director of legislative affairs for NPRI.