Author

Jerrick Adams

Jerrick Adams is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

U.S. Supreme Court declines to hear appeal over Washington law giving unions access to employee data

In our Oct. 1 edition, we detailed the petitions involving public-sector labor law pending in the U.S. Supreme Court at the start of the term. This week, we give an update on one of those cases. 

U.S. Supreme Court declines to hear appeal over Washington law giving unions access to employee data 

On Oct. 12, the U.S. Supreme Court declined to take up an appeal over a Washington state law that grants unions representing in-home healthcare providers  access to employee contact information.

What is at issue

On Nov. 8, 2016, Washington voters approved Initiative 1501. It exempts the “sensitive personal information” of “vulnerable individuals and in-home caregivers for vulnerable populations” from public disclosure laws. “Vulnerable individuals” include seniors with “functional, mental, or physical disabilities” and the developmentally disabled, among others. “Sensitive personal information” includes names, addresses, and telephone numbers. 

Initiative 1501’s disclosure limits do not extend to unions. The law authorizes the state to release personal information about in-home caregivers to unions representing those caregivers. 

The parties to the suit

The plaintiffs were three Washington in-home caregivers (Bradley Boardman, Deborah Thurber, and Shannon Benn) and the Freedom Foundation, a nonprofit whose self-described mission is “to advance individual liberty, free enterprise, and limited, accountable government.” Before Initiative 1501’s, the plaintiffs had made public-records requests to obtain caregiver contact information “to inform other individual providers of their right to opt out of paying agency fees.” 

The defendants were the Campaign to Prevent Fraud and Protect Seniors (the political committee that supported Initiative 1501) and several state officers in their official capacities. SEIU 775, which represents 45,000 long-term care workers in Washington, was the primary donor to the Campaign to Prevent Fraud and Protect Seniors, contributing about $1.6 million to the campaign. 

How lower courts ruled 

In April 2017, the plaintiffs filed suit in the U.S. District Court for the Western District of Washington, arguing that, “by giving the incumbent unions exclusive access to provider information, Initiative 1501 discriminates on the basis of viewpoint, in violation of the First Amendment.” On Jan. 10, 2019,  Judge Benjamin Settle, a George W. Bush (R) appointee, ruled in favor of the defendants, concluding that Initiative 1501 “does not discriminate based on viewpoint.” Settle said, “It is more accurate to characterize the access policy as based on the status of the respective unions rather than their views.” 

The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit. On Oct. 22, 2020, a three-judge panel voted 2-1 to uphold the lower court’s ruling. The panel concluded that “laws restricting public access to records do not implicate the First Amendment.” Judges N. Randy Smith and Milan D. Smith (both Bush appointees) formed the majority. Judge Daniel A. Bress (a Donald Trump (R) appointee)  dissented. The Ninth Circuit’s unfavorable ruling prompted the plaintiffs’ appeal to the U.S. Supreme Court. 

How the Supreme Court reacted 

The U.S. Supreme Court denied the petition for a writ of certiorari, meaning the Court will not hear the appeal. Associate Justices Thomas, Alito, and Gorsuch said that they would have granted the petition. 

The case name and number are Boardman v. Inslee (20-1334).

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.




Union Station: Comments on proposed rule affecting union dues deductions

Organizations submit comments to CMS on proposed rule affecting union dues deductions 

The comment period for a proposed regulation on whether states can deduct union dues from Medicaid payments to individual workers ended on Sept. 28. The Centers for Medicare & Medicaid Services (CMS) received feedback from 32 organizations and individuals during the eight-week comment period. We highlight eight of those responses below.

The proposed rule follows a legally contested 2019 rule preventing states from withholding voluntary payroll deductions from home care workers’ Medicaid payments.

About the proposed rule

Timeline:

  • July 21, 2021: CMS Administrator Chiquita Brooks-LaSure approved the proposed rule. 
  • Aug. 3, 2021: Notice of proposed rulemaking (NPRM) published in the Federal Register.
  • Sept. 28, 2021: Public comments due.

CMS says the rule would “explicitly authorize states to make payments to third parties to benefit individual practitioners by ensuring health and welfare benefits, training, and other benefits customary for employees, if the practitioner consents to such payments to third parties on the practitioner’s behalf.” 

In 2019, CMS published a final rule that “[removed] the regulatory text that [allowed] a state to make Medicaid payments to third parties on behalf of an individual provider for benefits such as health insurance, skills training, and other benefits customary for employees.” Six states challenged the rule, filing a lawsuit in the U.S. District Court for the Northern District of California. In November 2020, the court struck the rule and sent it back to CMS for further assessment. The defendant, then-HHS Secretary Alex Azar, appealed to the U.S. Court of Appeals for the Ninth Circuit. The case was temporarily suspended following a change in administrations and is currently on hold through February 2022.

About rulemaking 

Rulemaking is the process federal agencies use to amend, repeal, or create administrative regulations. The most common rulemaking process is informal rulemaking, in which an agency asks for public feedback on proposed rules during a comment period. A proposed rule, also known as a notice of proposed rulemaking (NPRM), is a preliminary version of a proposed regulation. Proposed rules are published in the Federal Register. After a comment period, the agency may revise, abandon, or continue the proposed rule to the final stage of the process. 

Comments in support of the proposed rule

Below are excerpts of comments supporting the proposed CMS rule:

“The proposal is wholly consistent with the clear congressional intent underlying the statutory provision. That intent is made plain by the legislative history and that intent was limited to prohibiting the practice of ‘factoring,’ i.e., the sale of claims to third parties who were then involved in making claims for payment from the states and thereby driving up states’ costs. The authorized payment to third parties at issue here – ‘for health and welfare benefits, contributions, training costs, and other costs customary for employees’ – do not involve factoring in any way as no one other than the providers makes any claims for compensation. … In addition to conflicting with clear congressional intent, a contrary construction of 42 U.S.C. Sec. 1396a(a)(32) interferes with individual practitioners’ access to affordable and efficient forms of health, retirement, training and other benefits. This will inflict harm on home care workers and others who are individual providers for Medicaid beneficiaries, as well as on beneficiaries themselves who are counting on these providers for skilled care.”

American Federation of Labor and Congress of Industrial Organizations (AFL-CIO)

“[W]hen home care providers form unions, advocate for themselves and their clients and engage in the process of collective bargaining with state and local authorities, positive outcomes flow, including lower turnover rates, increased workforce development and training and higher quality care. These benefits are enabled by and dependent on voluntary funding by home care workers through their payment of union dues and benefit contributions facilitated by payroll deductions. We estimate that collecting these dues without member-authorized, state-administered deductions of provider payments would cost union members in AFSCME’s California home care local approximately $600,000 per year. In other words, because unions are supported entirely by their members, this would mean home care workers would have to commit that much more in contributions simply to replicate a function more easily and efficiently performed by the state.”

American Federation of State, County & Municipal Employees (AFSCME)

“We believe that improvements in job quality and conditions for home care workers have been supported by the ability of states and workers to direct a portion of service payments to pay for the costs of benefits such as health care and training, and that this has been a step toward expanding and strengthening HCBS programs. The ability of workers to join together to form unions, and have input into the HCBS system through involvement in unions and organizations like NDWA, is particularly important in self-directed models of HCBS where workers are isolated and their voices are disaggregated. In this sector where the vast majority of workers are women, women of color, and disproportionately immigrants, improving conditions for workers is also a matter of racial and gender equity and a key step in addressing the historical marginalization of care work.”

National Domestic Workers Alliance

“Deductions made from a home care worker’s Medicaid payment—which in all relevant respects is the same paycheck that other privately and publicly employed workers receive—are not reassignments. They do not confer any right to the entity to which the deduction is directed, whether for health insurance, union dues, or tax payments, to make a claim for payment against the Medicaid program. In making authorized payroll deductions, states are not transferring the right to receive payment ‘for any care or service’ to any third party. Ordinary payroll deductions and contributions for items like voluntary health insurance or union dues are not ‘payment … for any care or service provided to an individual’ Medicaid beneficiary, §1902(a)(32), they are merely an expression of the home care worker’s ability to direct dollars that she owns as she chooses.”

Service Employees International Union (SEIU)

Comments opposing the proposed rule
Below are excerpts of comments opposing the proposed CMS rule:

“Unions have and will continue to use dues and fees deducted from Medicaid payments on administrative costs and salaries, issue advocacy, fundraising and politicking in favor of preferred candidates, funding of politically-motivated nonprofit groups, and many other activities that have nothing to do with the provision and reimbursement of medical care. To avoid the complicity of the federal and state governments in denying free speech rights of caregivers by diverting health care funding to union political spending, they should be taken out of the equation altogether, as the 2019 Final Rule did. Individual caregivers should, without the involvement of the government, privately resolve how and whether they wish to associate with unions or any other third party.”

Americans for Prosperity Foundation

“[W]e must respectfully urge CMS to abandon the proposed regulation, which would conflict with the statutory direct payment requirement in Subsection (a)(32), undermine the legal framework governing Medicaid, depart from CMS past interpretation of the law, and subject HCAs to continued fraud and coercion at the hands of third parties like labor unions with a financial interest in accessing providers’ payments via payroll deduction. Further, CMS has failed to prove that the regulation is necessary to advance the goals of a more stable, better trained HCA workforce, or that it would even materially contribute to those goals. Finally, the NPRM is premature given CMS’ failure to consult with stakeholders before publishing the proposed rule and its decision to forgo an RIA despite the best available evidence indicating the rule would have an economic impact of greater than $100 million.” 

Freedom Foundation

“Such a change would harm caregivers, provide no meaningful benefit to their patients, and directly lead to the federal funding of the inherently political activity of public-sector unions. Funds paid to caregivers should be used to support their efforts to care for the sick and disabled, not for favored political causes. This is doubly true while the litigation against the Department’s 2019 rule is ongoing. The Department should not adopt the proposed rule and should continue to defend its prior rule, which recognized it lacked authority to modify the Social Security Act through rulemaking. But, to the extent the Department intends to adopt the rule, it should also include specialized procedural protections to adequately protect providers’ First Amendment Rights under Janus and Harris.” 

Mackinac Center for Public Policy

“HCBS Medicaid payments are supposed to pay for care for the severely disabled. Diverting these payments to third-party special interests to subsidize their political agendas, lobbying, and recruitment campaigns is as unconscionable as it is unlawful under Subsection (a)(32). CMS should end this indefensible practice by enforcing Subsection (a)(32)’s unambiguous direct payment requirement. CMS’s opposite intent in its 2021 NPRM to condone this corrupt practice by inventing a new regulatory exception to the statute is inconsistent with Subsection (a)(32) and is arbitrary and capricious.” 

National Right to Work Legal Defense Foundation

To view all comments submitted in response to the proposed rule, click here.   

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.




Ballot Bulletin: California becomes eighth state to implement universal, automatic mail-in voting

Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local level. In this month’s issue:

  1. California becomes eighth state to implement universal, automatic mail-in voting
  2. Redistricting round-up: Oregon becomes the first state to enact congressional district maps after the 2020 census (and other news)
  3. Legislation update

Have a question/feedback/or just want to say hello? Respond to this email, or drop me a line directly at Jerrick@Ballotpedia.org.


California becomes eighth state to implement universal, automatic mail-in voting

On Sept. 27, 2021, Gov. Gavin Newsom (D) signed AB37 into law, making California the eighth state to provide for universal, automatic mail-in voting in all future elections. Under the new law, local election officials must automatically deliver mail-in ballots to all registered voters. In addition, AB37 modified the mail-in ballot return deadline. Ballots are considered “timely cast” if voted on or before Election Day and, when mailed, received by election officials no later than seven days after Election Day. Previously, the receipt deadline for ballots returned by mail was three days after Election Day. The law does not preclude people from voting in person.

On Sept. 2, 2021, the California Senate voted 30-7 to approve AB37. On Sept. 3, 2021, the California State Assembly followed suit, voting 60-17 in favor of the bill.

Secretary of State Shirley Weber (D) said: “Voters like having options for returning their ballot whether by mail, at a secure drop box, a voting center or at a traditional polling station. And the more people who participate in elections, the stronger our democracy and the more we have assurance that elections reflect the will of the people of California.” 

Meanwhile, California GOP Chairwoman Jessica Millan Patterson said: “It’s no secret that Democrats have and will continue to try to manipulate election regulations for their political advantage. Republicans will hold them accountable through our election integrity operations – including litigation, where appropriate – and by recruiting and supporting candidates who will provide solutions to California’s numerous challenges.”

In the 2020 election cycle, California implemented universal, automatic mail-in voting on a temporary basis in response to the COVID-19 pandemic. The state also implemented universal, automatic mail-in voting in this year’s gubernatorial recall.

Seven other states have implemented permanent all-mail voting systems: Colorado, Hawaii, Nevada, Oregon, Utah, Vermont, and Washington.


Redistricting round-up: Oregon becomes the first state to enact congressional district maps after the 2020 census (and other news)

In today’s round-up, we take a look at the following recent developments: 

  • Oregon becomes the first state to enact congressional district maps after the 2020 census.
  • Colorado redistricting commission approves final congressional map.
  • Ohio redistricting commission approves state legislative district maps on party-line vote.

Oregon: Oregon becomes first state to enact congressional maps after 2020 census 

On Sept. 27, Gov. Kate Brown (D) signed new congressional and state legislative district maps into law, making Oregon the first state to enact new congressional maps in the current redistricting cycle. The state Senate approved the new congressional map 18-6. The state House of Representatives approved the new map 33-16. The state Senate approved the new legislative map 18-11. The House approved the new map 31-18. According to The Oregonian, the new congressional map creates three safe Democratic districts, one safe Republican district, one district that leans Democratic, and one toss-up.

Brown said, “My office reviewed the maps contained in the bills passed by the Legislature after they were proposed this weekend. Redistricting is a process that necessarily involves compromise, and I appreciate the Legislature working to balance the various interests of all Oregonians.” 

House Republican Leader Christine Drazan (R) criticized the maps, saying: “This is by no means over. The illegal congressional map adopted today, clearly drawn for partisan benefit, will not survive legal challenge. Political gerrymandering in Oregon is illegal and drawing congressional lines to ensure five out of six seats for your party long-term is gerrymandering.”

About redistricting in Oregon: In Oregon, the state legislature draws congressional and state legislative district maps. Maps are subject to veto by the governor.

If the legislature does not approve a redistricting plan for state legislative districts, the secretary of state draws the boundaries.

State law requires that congressional and state legislative districts meet the following criteria:

  • Districts must be contiguous.
  • Districts must “utilize existing geographic or political boundaries.”
  • Districts should not “divide communities of common interest.”
  • Districts should “be connected by transportation links.”
  • Districts “must not be drawn for the purpose of favoring a political party, incumbent or other person.”

For more information about the current redistricting cycle in Oregon, click here.


Colorado: Redistricting commission approves final congressional map 

On Sept. 28, the Colorado Independent Congressional Redistricting Commission approved a final congressional district map. Eleven of the 12 commissioners voted in favor of the final map, which was one of nine proposed. The commission ultimately selected a version of the third staff plan, as amended by Commissioner Martha Coleman (D).

The Denver Post’s Alex Burness said the approved map “gives comfortable advantages to each of Colorado’s seven incumbent members of Congress — Democrats Joe Neguse, Jason Crow, Diana DeGette, and Ed Perlmutter and Republicans Ken Buck, Lauren Boebert and Doug Lamborn.” Regarding the state’s new eighth district, Burness said, “Recent election results suggest the new 8th Congressional District will be a close race in 2022.”

About redistricting in Colorado: On Nov. 6, 2018, Colorado voters approved constitutional amendments Y and Z, establishing separate non-politician commissions for congressional and state legislative redistricting. Each commission has four members belonging to the state’s largest political party, four members belonging to the state’s second-largest party, and four members belonging to no party. Commission members are appointed by a panel of three judges selected by the Chief Justice of the Colorado Supreme Court. The amendment requires at least eight of the commission’s 12 members, including at least two members not belonging to any political party, to approve a map.

For more information about the current redistricting cycle in Colorado, click here.


Ohio: Redistricting commission approves state legislative district maps on party-line vote 

On Sept. 16,the Ohio Redistricting Commission approved new state legislative district maps by a 5-2 vote. The two Democratic members of the commission, state Rep. Emilia Sykes (D) and state Sen. Vernon Sykes (D), dissented. Since the maps were approved along partisan lines, they will remain in force for four years as opposed to 10, as required under the 2015 constitutional amendment that created the commission. These maps take effect for Ohio’s 2022 legislative elections.

Senate President Matt Huffman (R), a member of the commission, estimated that the new maps would create 62 Republican seats and 37 Democratic seats in the House, and 23 Republican seats and 10 Democratic seats in the Senate. Cleveland.com reported that Democrats on the commission agreed with Huffman’s Senate estimates, but said the new House map would create 65 Republican seats and 34 Democratic seats. 

For more information about the current redistricting cycle in Ohio, click here.


Legislation update: Redistricting, electoral systems, and primary systems bills 

Redistricting legislation: So far this year, we’ve tracked at least 219 redistricting-related bills up for consideration in state legislatures. 

Redistricting legislation in the United States, 2021 

Current as of Oct. 5, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 147 bills dealing with electoral systems that are up for consideration in state legislatures. 

Electoral systems legislation in the United States, 2021 

Current as of Oct. 5, 2021

Primary systems legislation: So far this year, we’ve tracked at least 20 bills dealing with primary systems that are up for consideration in state legislatures. 

Primary systems legislation in the United States, 2021 

Current as of Oct. 5, 2021



California becomes eighth state to implement universal, automatic mail-in voting

On Sept. 27, 2021, Governor Gavin Newsom (D) signed AB37 into law, making California the eighth state to provide for universal, automatic mail-in voting in all future elections. Under the law as enacted, local election officials must automatically deliver mail-in ballots to all registered voters. In addition, AB37 modified the mail-in ballot return deadline: ballots are considered timely cast if voted on or before Election Day and, when delivered by mail, received by election officials no later than seven days after Election Day (previously, the receipt deadline for ballots returned by mail was three days after Election Day). The law does not preclude voters from choosing instead to cast their ballots in person.

On Sept. 2, 2021, the California State Senate approved the final version of AB37 by a vote of 30-7. On September 3, 2021, the California State Assembly followed suit, voting 60-17 in favor of the bill.

In response to the bill’s signing, Secretary of State Shirley Weber (D) said, “Voters like having options for returning their ballot whether by mail, at a secure drop box, a voting center or at a traditional polling station. And the more people who participate in elections, the stronger our democracy and the more we have assurance that elections reflect the will of the people of California.” Meanwhile, California GOP Chairwoman Jessica Millan Patterson said, “It’s no secret that Democrats have and will continue to try to manipulate election regulations for their political advantage. Republicans will hold them accountable through our election integrity operations – including litigation, where appropriate – and by recruiting and supporting candidates who will provide solutions to California’s numerous challenges.”

Seven other states have implemented permanent all-mail voting systems: Colorado, Hawaii, Nevada, Oregon, Utah, Vermont, and Washington.

Additional reading:



U.S. Supreme Court begins 2021-2022 term with 15 petitions to review public-sector union cases

 The Supreme Court’s new term begins on Monday, Oct. 4. As of Oct. 1, appellants have filed petitions for writs of certiorari—requests for the Supreme Court to review a lower court’s ruling—in 15 of the public-sector union cases Ballotpedia is currently tracking. Next, the Supreme Court will decide whether it will hear these cases. 

On Sept. 27, the court held its first conference for the term. Often called the “long conference,” this is when the court reviews outstanding petitions filed during the previous term or during the summer. The court will release the order list for cases considered during this conference at 9:30 a.m. on Monday, Oct. 4. Thirteen of the 15 petitions were distributed to the justices for this conference. 

The Supreme Court receives around 7,000 to 8,000 petitions every year. During its past five terms, the court has agreed to hear an average of 71 cases per term.  

Since the Supreme Court’s 2018 ruling in Janus v. AFSCME, Ballotpedia has tracked close to 150 lawsuits in federal and state courts, 33 of which have been appealed to the Supreme Court. So far, the court has not heard any of these petitions. During its 2020-2021 term, the court denied 12 petitions. During its 2019-2020 term, it declined to hear four, and during its 2018-2019 term, it declined to hear two.

Petitions pending for the 2021-2022 term 

The following 15 petitions are currently pending before the U.S. Supreme Court:

Seidemann v. Professional Staff CongressAppealed from the Second Circuit. Original complaint: Oct. 24, 2018Appellate ruling: Jan. 11, 2021Docketed June 10, 2021. Distributed for conference on Sept. 27, 2021.Questions presented in the petition:“Whether the proper remedy for the collection of an illegal fee is refund or restitution, regardless of the purported good faith of the fee collector.”“Whether this Court’s application of a rule of federal law to the parties before it requires every court to give retroactive effect to that decision.”“Whether 42 U.S.C. 1983 provides a good-faith defense for private entities who violate private rights if the private entities acted under color of a law before it was held unconstitutional.”Question presented in the respondents’ brief: “Whether a union can be held liable for retrospective monetary relief under 42 U.S.C. § 1983 for receiving and spending agency fees to pay for collective bargaining representation prior to Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), even though such fees were authorized by state law and constitutional under then-controlling Supreme Court precedent.”
Solomon v. AFSCME District Council 37Appealed from the Second Circuit.Original complaint: July 23, 2019Appellate ruling: March 10, 2021Docketed Aug. 10, 2021.Distributed for conference on Sept. 27, 2021.Question presented in the petition: “The question presented is whether there is a categorical good-faith defense to 42 U.S.C. § 1983 that shields a defendant from damages liability for depriving citizens of their constitutional rights if the defendant acted under color of a law before it was held unconstitutional?”Question presented in the respondent’s brief: “Whether a union can be held liable for retrospective monetary relief under 42 U.S.C. § 1983 for receiving and spending agency fees to pay for collective bargaining representation prior to Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), where such fees were authorized by state law and constitutional under this Court’s then-controlling precedent.”
Fischer v. MurphyAppealed from the Third Circuit.Original complaint: Nov. 2, 2018Appellate ruling: Jan. 15, 2021Docketed June 16, 2021.Distributed for conference on Sept. 27, 2021.Questions presented in the petition:“Under the First Amendment, to seize payments for union speech from employees who provide notice they are nonmembers and object to supporting the union, do governments and unions need clear and compelling evidence those employees knowingly, intelligently, and voluntarily waived their First Amendment rights and that enforcement of that waiver is not against public policy?”“Do Petitioners have standing to challenge New Jersey Statutes Annotated Section 52:14-15.9e?Questions presented in the respondents’ brief: “Whether this Court has jurisdiction to consider a challenge to a statute brought against a state actor who has no role in enforcing the statute, where the statute did not injure Petitioners, and where a judgment in Petitioners’ favor would not benefit them.”“Whether the First Amendment is violated when dues are deducted from the pay of a public employee who voluntarily joined a union and affirmatively authorized union dues to be deducted for the relevant time period.”
Rizzo-Rupon v. International Association of Machinists and Aerospace WorkersAppealed from the Third Circuit. Original complaint: Jan. 8, 2019Appellate ruling: Sept. 23, 2020Docketed April 1, 2021.Distributed for conference on Sept. 27, 2021.Questions presented in the petition:“Does this Court’s recent First Amendment agency-fee ban announced in Janus v. AFSCME … apply to matters involving private-sector employees governed by the auspices of the Railway Labor Act?”“Is there state action present when private-sector employees challenge agency fees under the RLA?”From the respondents’ brief: “This Court has previously refused to constitutionalize private sector collective bargaining. … The Petitioners have presented no sound arguments for second-guessing that decision.”
Baisley v. International Association of Machinists and Aerospace WorkersAppealed from the Fifth Circuit. Original complaint: May 16, 2019Appellate ruling: Dec. 22, 2020 Docketed May 26, 2021.Distributed for conference on Sept. 27, 2021.Question presented in the petition: “Whether opt-out procedures for collecting union fees for ideological and political activities violate the First Amendment or the Railway Labor Act.”From the respondent’s brief: “The premise of the petition is that [International Association of Machinists v. Street]’s longstanding construction of the RLA was unsettled by the Court’s recent decision in Janus v. AFSCME […]. However, Janus rests on the proposition that the First Amendment rights of public sector employees, as defined in that decision, are entirely distinct from the statutory rights of private sector employees under the RLA. There is, therefore, no conflict between the court of appeals’ decision in this case, which faithfully follows Street’s construction of the RLA, and any decision of this Court.”
Taylor v. State BarAppealed from the Sixth Circuit.Original complaint: Aug. 22, 2019 Appellate ruling: July 15, 2021Docketed Sept. 7, 2021.Not yet distributed. Question presented in the petition: “Prior to Janus, the Court had developed two lines of case law together, frequently alternating and each building on the other—the aforementioned public-sector employees and whether they could be forced to fund a union—and attorneys and whether they could be forced to join and fund an integrated bar association. After Janus held that such compulsion in the union context was impermissible, the question is: Can the State of Michigan compel practicing attorneys to fund an integrated bar association that takes policy positions, or does such a law fail exacting scrutiny and violate the attorneys’ First Amendment rights?” Respondents have not yet filed a brief in opposition.
Bennett v. AFSCMEAppealed from Seventh Circuit.Original complaint: April 26, 2019Appellate ruling: March 12, 2021Docketed May 18, 2021.Distributed for conference on Sept. 27, 2021.Question presented in the petition: “Whether an employee’s signature on a union membership card and dues deduction authorization by itself authorizes a government employer and public-sector union to withhold union dues or other fees from an employee’s wages consistent with this Court’s affirmative consent waiver requirement set forth in Janus?”Question presented in the respondents’ brief: “Whether a public employee who voluntarily joined a union, signed a written agreement to pay membership dues through payroll deduction for a one-year period, and received membership rights and benefits in return, suffered a violation of her First Amendment rights when her employer made the deductions that she affirmatively and unambiguously had authorized.”
Leitch v. AFSCMEAppealed from Seventh Circuit. Original complaint: May 1, 2019Appellate ruling: Feb. 3, 2021 Docketed July 9, 2021. Distributed for conference on Sept. 27, 2021.Question presented in the petition: “The question presented is whether there is a ‘good faith defense’ to 42 U.S.C. § 1983 that shields a defendant from damages liability for depriving citizens of their constitutional rights if the defendant acted under color of a law before it was held unconstitutional?”Question presented in respondent’s brief: “Whether a union can be held liable for retrospective monetary relief under 42 U.S.C. § 1983 for receiving and spending agency fees to pay for collective bargaining representation prior to Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), where such fees were authorized by state law and constitutional under this Court’s then-controlling precedent.”  
Ocol v. Chicago Teachers UnionAppealed from Seventh Circuit. Original complaint: Dec. 6, 2018Appellate ruling: Dec. 9, 2020Docketed May 13, 2021.Distributed for conference on Sept. 27, 2021.Questions presented in the petition: “Should the Court overrule [Minnesota State Board for Community Colleges v. Knight] and hold that the First Amendment prohibits States from forcing dissident public employees to accept a hostile union as their exclusive bargaining representative?” “Does 42 U.S.C. § 1983 provide a ‘good-faith defense’ to private entities who violate another’s constitutional rights before the courts have clearly established the illegality of their conduct and, if so, does this ‘good-faith defense’ allow a 42 U.S.C. § 1983 defendant who takes another person’s money or property in violation of the Constitution—but in reliance on a statute or court ruling that purported to authorize its conduct and is only later declared unconstitutional—to keep that money or property when the owner sues for its return?”  Questions presented in the respondents’ brief: “Whether to overrule Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), in which this Court upheld the constitutionality of public-sector exclusive representation, the core principle on which labor-relations statutes across the country are based.”“Whether, contrary to the unanimous holdings of the lower courts, a union can be held liable to repay fair-share fees that were authorized by state law and then-controlling precedent prior to Janus v. American Federation of State, County & Municipal Employees, Council 31.”
Troesch v. Chicago Teachers UnionAppealed from Seventh Circuit.Original complaint: May 4, 2020Appellate ruling: April 15, 2021Docketed June 23, 2021.Distributed for conference on Sept. 27, 2021.Question presented in the petition: “Under the First Amendment, to seize payments for union speech from employees who provide notice they are nonmembers and object to supporting the union, do governments and unions need clear and compelling evidence those employees knowingly, intelligently, and voluntarily waived their First Amendment rights and that enforcement of the purported waiver is not against public policy?”Question presented in the respondent’s brief: “Whether public employees who voluntarily joined a union, signed written agreements to pay membership dues through payroll deduction for a specified time period, and received membership rights and benefits in return, suffered a violation of their First Amendment rights when their employer made the deductions that they affirmatively and unambiguously had authorized.”
Brice v. California Faculty AssociationAppealed from the Ninth Circuit.Original complaint: Nov. 30, 2018 Appellate ruling: April 28, 2021Docketed Sept. 30, 2021. Not yet distributed. Question presented in the petition: “Whether an affirmative good faith defense denying damages to the victims of First Amendment wrongdoing is faithful to the language and purpose of 42 U.S.C. § 1983 or to the principles of ‘equality and fairness’ to all the parties involved?” Respondents have not yet filed a brief in opposition.
Crowe v. Oregon State BarAppealed from the Ninth Circuit.Original complaint: Dec. 13, 2018Appellate ruling: Feb. 26, 2021Docketed June 2, 2021. Distributed for conference on Sept. 27, 2021.Question presented in the petition: “Is the statute that compels attorneys to subsidize Oregon State Bar’s political and ideological speech subject to ‘exacting’ scrutiny?”Respondents waived the right to respond. 
Gruber v. Oregon State BarAppealed from the Ninth Circuit. Original complaint: Aug. 29, 2018Appellate ruling: Feb. 26, 2021Docketed April 30, 2021. Distributed for conference on Sept. 27, 2021.Questions presented in the petition:“Did Keller v. State Bar of California … actually decide that an integrated bar may use mandatory dues for germane speech or was it dictum and therefore not binding precedent?”“If Keller did actually decide that an integrated bar may use mandatory dues for germane speech, should Keller be overruled to be consistent with Janus v. AFSCME …?” Respondents waived the right to respond.
Boardman v. InsleeAppealed from Ninth Circuit.Original complaint: April 5, 2017Appellate ruling: Oct. 22, 2020Docketed March 24, 2021.Distributed for conference on Sept. 27, 2021.Question presented in the petition: “Whether a law that skews the debate over the value of public-sector unions and undermines public-sector employees’ opt-out rights by giving incumbent unions exclusive access to information necessary to communicate with public-sector employees is consistent with the First Amendment.”Question presented in the respondents’ brief: “Did Washington voters violate the First Amendment by deciding that the personal contact information of certain caregivers should generally be exempt from disclosure under the State’s public records statute but can be shared in limited ways, including with the union statutorily obligated to represent the caregivers?”
Hendrickson v. AFSCME Council 18Appealed from Tenth Circuit.Original complaint: Nov. 30, 2018Appellate ruling: March 26, 2021Docketed May 18, 2021.Distributed for conference on Sept. 27, 2021.Questions presented in the petition: “Whether a union can trap a public worker into paying dues without the ‘affirmative consent’ required by Janus v. AFSCME.”“Whether a union can moot a claim that it has violated Janus’ affirmative consent requirements simply by establishing opt-out windows too short to reach appellate review.”Questions presented in the respondents’ brief: “Whether a public employee who voluntarily joined a union, signed written agreements to pay membership dues via payroll deduction for a one-year period and received membership rights and benefits in return, suffered a violation of his First Amendment rights when his employer made the deductions that he affirmatively and unambiguously had authorized.”“Whether a public employee’s claim for prospective relief regarding union dues deductions is moot when those deductions have ceased, there is no likelihood the deductions will resume, and no exceptions to mootness apply.”

To view the current status of all cases distributed at the Sept. 27 conference, click here. To view past orders of the court by term year, click here.

About the Supreme Court

The U.S. Supreme Court is the highest judicial body in the country and leads the judicial branch of the federal government. The Supreme Court consists of nine justices who are nominated by the president and confirmed by the United States Senate.

President George H.W. Bush (R) appointed Justice Clarence Thomas to the court. President Bill Clinton (D) appointed Justice Stephen Breyer. President George W. Bush (R) appointed Chief Justice John Roberts and Justice Samuel Alito. President Barack Obama (D) appointed Justices Elena Kagan and Sonia Sotomayor. President Donald Trump (R) appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

The Supreme Court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June. 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.


Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations. 



Federal appeals court upholds Rhode Island donor disclosure law

On Sept. 14, 2021, the United States Court of Appeals for the First Circuit upheld a 2012 Rhode Island donor disclosure law in Gaspee Project v. Mederos. The law requires organizations that spend more than $1,000 per year on independent expenditures or electioneering communications to file a report with the Board of Elections disclosing all donors who contribute more than $1,000. Affected organizations are also required to register with the Board, provide the name and address of the person or group responsible for the expenditure, and list the names of their five largest donors from the previous year. In 2019, two nonprofit organizations challenged the law. The case was dismissed in 2020 before being appealed to the higher court.

2019 district court challenge

On November 21, 2019, two 501(c)(4) groups, the Gaspee Project and the Illinois Opportunity Project, sued the Rhode Island Board of Elections, saying paid political messages were protected speech if they were not coordinated with a specific candidate’s campaign. The organizations said they were “concerned that compelled disclosure of their members and supporters could lead to substantial personal and economic repercussions” including “harassment, career damage, and even death threats for engaging and expressing their views in the public square.”

In August 2020, U.S. District Court Judge Mary McElroy, who was appointed by President Donald Trump (R) in 2018, dismissed the case. McElroy wrote: “The Act’s disclosure and disclaimer requirements are justified by the sufficiently important state interest of an informed electorate and any burdens on political speech that they may cause are substantially related to that state interest. The plaintiffs, therefore, cannot state a plausible claim that the Act is facially violative of First and Fourteenth Amendment rights.” The organizations appealed the case to the United States Court of Appeals for the First Circuit. 

Court of Appeals decision

The appeal went before circuit judges  Bruce Marshall Selya (appointed by President Ronald Reagan (R)) and David Barron and district judge Pedro A. Delgado Hernández (both appointed by President Barack Obama (D)). The plaintiffs challenged three specific provisions of the law requiring groups to disclose all donors contributing $1, 000 or more, register with the Board and provide the name and address of the person or group paying for advertisements, and list their five largest donors from the previous year. They said the law’s provisions “do not withstand the requisite degree of scrutiny and, in any event, that they infringe constitutionally protected privacy, associational, and free-speech rights.” 

The court rejected the plaintiff’s arguments. Writing for the court, Judge Selya said: “ The Act’s disclosure requirements are narrowly tailored enough to avoid any First Amendment infirmity.” Selya also said “we hold that the challenged provisions of the Act bear a substantial relation to a sufficiently important governmental interest and are narrowly tailored enough to withstand exacting scrutiny.”

Reactions

The plaintiffs said they plan to appeal the ruling to the U.S. Supreme Court. Daniel Suhr, managing attorney at the Liberty Justice Center, said: “Free speech and citizen privacy are fundamental to our democracy. We continue to believe in the strength of our arguments, and we plan to appeal to the Supreme Court to vindicate these foundational constitutional rights.”

Rhode Island Attorney General Peter Neronha said the ruling “is a win for transparency, and accordingly for all Rhode Islanders.” “State campaign and election finance laws exist for a reason: to inform Rhode Islanders of the sources of financial support, directly or indirectly, for candidates for public office,” Neronha said. “Such information is critical to voters evaluating the motivations and positions of those who would hold high office.”

Assistant attorney general Katherine Connolly Sadeck, who represented the state in the case, said it had the potential to influence similar cases. “We’re seeing a number of challenges throughout the country to disclosure type laws in similar contexts. This is an important decision that will probably be referenced in a lot of those cases,” said Sadeck.

The big picture

Number of relevant bills by state: We’re currently tracking 40 pieces of legislation dealing with donor disclosure and privacy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s):

Recent legislative actions

For complete information on all of the bills we are tracking, click here

  • California SB686: This bill would require a limited liability company that qualifies as a committee or a sponsor of a committee under the state’s campaign finance laws to file a statement of members with the secretary of state. The statement of members must include a list of all persons who have a membership interest in the limited liability company of at least 10% or who made a cumulative capital contribution of at least $1,000 to the company after it qualified as a committee or sponsor of a committee, or within the two calendar years before it qualified.
    • Primary emphasis: Disclosure
    • Democratic sponsorship
    • The bill passed the California Senate in a 28-6 vote on Sept. 10 and was presented to Gov. Gavin Newsom (D) on Sept. 17.  
  • Florida S0294: This bill would create an exemption from public records requirements for personal identifying information of a donor or prospective donor to the direct-support organization of the Statewide Council on Human Trafficking who desires to remain anonymous and provide an exemption from notice requirements for specified meetings. It provides for future legislative review and repeal of the exemption under the Open Government Sunset Review Act.
    • Primary emphasis: Privacy
    • Republican sponsorship
    • State Sen. Ileana Garcia (R) introduced the bill on Sept. 22.
  • North Carolina S636: This bill would provide that, except as specifically required by state or federal law, the identity of any person giving money or other tangible goods to a nonprofit corporation or furthering any charitable purpose of that nonprofit corporation is confidential.
    • Primary emphasis: Privacy
    • Bipartisan sponsorship
    • North Carolina Gov. Roy Cooper (R) vetoed the bill on Sept. 7.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations. 



Tax deduction for union dues included in budget plan

Union Station

Tax deduction for union dues included in budget plan 

A federal tax deduction for union dues is part of Democrats’ budget plan for fiscal year 2022. 

About the union dues tax deduction

On Sept. 15, the House Ways and Means Committee approved its portion of Democrats’ budget reconciliation package, the Build Back Better Act. Section 138514 of Subtitle I, titled “Allowance of Deduction for Certain Expenses of the Trade or Business of Being an Employee,” says, “The provision allows for up to $250 in dues to a labor organization be claimed as an above-the-line deduction. The provision is effective for taxable years beginning after December 31, 2021.”

Republicans on the Ways and Means Committee opposed the deduction. An amendment sponsored by Rep. Lloyd Smucker (R-Pa.) to strike the deduction was defeated 25-18 along party lines. 

Before 2017, union dues were a work-related expense that could be included in an itemized (“below-the-line”) deduction of expenses exceeding 2% of the employee’s adjusted gross income. Republicans removed most work-related itemized deductions in the 2017 Tax Cuts and Jobs Act (TCJA). 

About the 2022 budget 

Senator Bernie Sanders (I-Vt.) introduced the budget resolution for fiscal year 2022 on Aug. 9. A budget resolution outlines instructions for Congress to use in drafting its spending plan. Passing a budget resolution is a necessary requirement before Congress may use the reconciliation process for a final budget package. The reconciliation process allows the Senate to pass a budget with a simple majority instead of the 60 votes necessary to invoke cloture and override the filibuster

The Senate approved the budget resolution on Aug. 11, and the House of Representatives approved it on Aug. 24. House and Senate committees then had until Sept. 15 to draft their legislation for the reconciliation package.

The deadline for Congress to pass a budget and avoid government shutdown is Sept. 30, as fiscal year 2022 begins on Oct. 1. On Sept. 21, the House voted 220-211 to pass a temporary continuing resolution to fund the government through Dec. 3. The bill went to the Senate on Sept. 22, where it requires 60 votes to pass. 

Democrats have a 220-212 majority in the House. The Senate is split 50-50 with Vice President Kamala Harris (D) having the tie-breaking vote.

Perspectives 

Support for union dues deductions 

In April 2021, Sen. Bob Casey (D-Pa.) said of a similar piece of proposed legislation, “Unions are the backbone of the middle class, supporting workers, wage growth and fair economic conditions. In 2017, Republicans eliminated tax deductions for workers and instead gave massive tax cuts for large, profitable corporations. [The Tax Fairness for Workers Act] would put money back in the pockets of working families by reinstating deductions for union dues and other unreimbursed employee expenses.” 

A 2020 Center for American Progress Action Fund brief stated, “This type of [above-the-line] deduction would allow union members to deduct the costs of earning their income and result in the tax code more accurately measuring individuals’ ability to pay.”

Opposition to union dues deductions

Rep. Kevin Brady (R-Texas), ranking member of the Ways and Means Committee, said, “In effect, they’ve forced the 90% of workers in America who aren’t in a union to subsidize the dues of those who are.”

Dominic Pino, a fellow at the National Review Institute, wrote, “By making union dues tax deductible, Democrats are essentially making it more financially viable for people to contribute to organizations that help elect Democrats.”

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.



North Carolina court strikes down voter ID law as unconstitutional

On Sept.17, 2021, a three-judge panel of the Wake County Superior Court ruled 2-1 that North Carolina’s voter ID law violates the state constitution. As a result, the court blocked enforcement of the law.

The court found that “the evidence at trial [is] sufficient to show that the enactment of [the voter ID law] was motivated at least in part by an unconstitutional intent to target African American voters.” The court also ruled that “[o]ther, less restrictive voter ID laws would have sufficed to achieve the legitimate nonracial purposes of implementing the constitutional amendment requiring voter ID, deterring fraud, or enhancing voter confident.” Judges Michael O’Foghludha and Vince M. Rozier Jr. formed the majority. Judge Nathaniel J. Poovey dissented. Sam Hayes, general counsel for House Speaker Tim Moore (R), said Moore would appeal the ruling.

The court’s order represents its final judgment on the matter. The court had previously issued a preliminary injunction barring enforcement of the law on a temporary basis, pending resolution on the merits.

This ruling is the most recent in a series of legal developments involving North Carolina’s voter ID law. On Nov. 6, 2018, North Carolina voters approved a state constitutional amendment establishing a photo identification requirement for voters. The state legislature, with Republican majorities in both chambers, approved implementing legislation (SB 824) in December of that year, overriding Democratic Governor Roy Cooper’s veto. Lawsuits immediately followed, both in federal and state-level courts. In December 2019, a federal district court temporarily enjoined SB 824, but this ruling was subsequently overturned by the U.S. Court of Appeals for the Fourth Circuit. The state lawsuit giving rise to the Sept. 17 order has been ongoing since 2019.



Public-sector union responses to COVID-19 vaccine mandates

Exploring public-sector union responses to COVID-19 vaccine mandates

Public-sector unions have issued a range of responses to federal and state mandates requiring government workers to get a COVID-19 vaccine. However, most unions state that they should have input on how such policies are implemented. 

Public-sector union responses to federal vaccine mandate

On Sept. 9, President Joe Biden (D) announced a new COVID-19 plan, including “an emergency rule to require all employers with 100 or more employees … to ensure their workforces are fully vaccinated or show a negative test at least once a week.” The same day, Biden signed Executive Order 14043, which states that in order to promote workforce health and safety, “it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.” 

Representatives from major public-sector unions responded:     

  • AFL-CIO President Liz Shuler said on Sept. 10, “The resurgence of COVID-19 requires swift and immediate action, and we commend President Biden for taking additional steps to help put an end to this crisis. Everyone should be vaccinated—as one step in stopping the pandemic. Workers and unions should have a voice in shaping these policies.” 
  • On Sept. 9, American Federation of Government Employees President Everett Kelley said, “Since the vaccines first became widely available, we have strongly encouraged all our members to take one of the several safe, effective vaccines against COVID-19. … Likewise, since President Biden made his first major announcement about changing COVID-19 protocols for the federal workforce in response to the surging Delta variant, we have said that changes like this should be negotiated with our bargaining units where appropriate. … Neither of these positions has changed. We expect to bargain over this change prior to implementation, and we urge everyone who is able to get vaccinated as soon as they can do so.”
  • American Federation of Teachers President Randi Weingarten said on Sept. 9, “The AFT wants to beat the pandemic, and that means now we must work together as a community. That’s why we stand in complete support of this plan and of the administration’s effort to protect as many people as possible.” 
  • On Sept. 9, Federal Law Enforcement Officers Association President Larry Cosme said, “The Biden-Harris Administration’s action to mandate the COVID-19 vaccine for all federal employees is ill conceived. … This executive order villainizes employees for reasonable concerns and hesitancies and inserts the federal government into individual medical decisions. People should not be made to feel uncomfortable for making a reasonable medical choice.”
  • On Sept. 15, the National Association of Letter Carriers (NALC) stated, “Currently, it is unclear how the executive orders and [emergency rule for employers with over 100 employees] will affect letter carriers and the Postal Service. As more information becomes available, NALC will review and bargain over any rulings that affect our members.” The American Postal Workers Union (APWU) stated on Sept. 10 that Biden’s executive orders “do not expressly apply to Postal Service Employees,” and that the union was waiting for more information on the emergency rule. In July, the union stated, “While the APWU leadership continues to encourage postal workers to voluntarily get vaccinated, it is not the role of the federal government to mandate vaccinations for the employees we represent.” 

Public-sector union responses to state vaccine mandates

Twenty states have issued COVID-19 vaccine requirements for state employees. Here are how some unions responded in four states: California, Hawaii, Vermont, and Washington.  

California

California Gov. Gavin Newsom (D) announced on July 26 that all state employees would be required to be vaccinated for COVID-19 or submit to weekly testing. 

Some unions, including SEIU Local 1000, the International Union of Operating Engineers, and  Cal Fire Local 2881, filed complaints following the mandate. SEIU Local 1000 sent a cease and desist letter to the California Department of Human Resources that said, “This is a change in the terms and working conditions of our represented employees and requires meeting and conferring with the union prior to implementing the change.” Tim Edwards, president of Cal Fire Local 2881, said, “We oppose mandating vaccinations and believe the state has a contractual obligation to meet and confer with labor over any possible impacts to the employees.”

Other unions expressed more support for the mandate. Glen Stailey, president of the California Correctional Peace Officers Association, said: “Newsom’s new vaccine policy is a reasonable compromise that we can get behind. It provides for regular testing at work for those who have chosen not to get vaccinated — this will prevent the spread of the virus among correctional officers and incarcerated individuals alike.” The California Statewide Law Enforcement Association said the union was “in the process of confirming that testing will be done at no cost to the employee and on State time and how employees will be compensated for self-quarantine if mandated to do so.”  

Hawaii

Hawaii Gov. David Ige (D) issued a proclamation on Aug. 5 requiring state and county employees to be vaccinated for COVID-19 or undergo regular testing. The same day, six public-sector unions—the Hawaii State Teachers Association, the Hawaii Fire Fighters Association, Hawaii Government Employees Association, the State of Hawaii Organization of Police Officers, the University of Hawaii Professional Assembly, and the United Public Workers—released a joint statement responding to the mandate. The unions said they had contacted the governor’s office “to initiate discussions about the vaccine mandate” but had been denied. The statement continued: “The emergency proclamation will impact our members’ working conditions and the employer must bargain those impacts with the appropriate collective bargaining units. Details on how tests will be administered, how results will be kept confidential, and how the state will fund this mandate will need to be negotiated with the state and we look forward to having those discussions right away.”

Vermont

On Sept. 8, Vermont Gov. Phil Scott (R) announced that the state’s vaccine requirement would be expanded to all state executive branch employees. Vermont State Employees Association (VSEA) President Steve Howard said, “The low hanging fruit is maybe requiring it of state employees. … The tougher part, which requires some leadership, is to say to the public, ‘You have to do your part.’”  

Washington

Washington Gov. Jay Inslee (D) announced a vaccine requirement for state workers on Aug. 9. Washington Federation of State Employees/AFSCME Council 28 (WFSE)’s initial attempts to reach a bargaining agreement with the state over the mandate were unsuccessful, and WFSE filed an unfair labor practice lawsuit in the Thurston County Superior Court on Aug. 26. A press release from the union said: “[Inslee’s] proclamation impairs the union’s right to bargain on behalf of employees and impairs the ability to ensure a fair and reasonable exemption process. The lawsuit alleges an unfair labor practice for refusal to bargain in good faith.”

After further negotiations with the state, WFSE members ratified an agreement on Sept. 9 outlining an exemption process and conditions of employment. WFSE President Mike Yestramski said: “Our union was able to achieve what we set out for—a victory for public health and due process. … Now, we have an agreement that incentivizes vaccination and helps ensure a fair process for workers requesting a medical or religious exemption.” Since an agreement has been reached, WFSE is dropping the lawsuit. 

For more information about the 20 states that have issued vaccine requirements for state employees, click here

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. 

  • Delaware HB237: This bill grants select law enforcement officers the right of organization and representation.  
    • Democratic sponsorship. 
    • Governor signed Sept. 10. 



Union Station: Biden, AFSCME include Public Service Freedom to Negotiate Act in Labor Day statements

Biden, AFSCME include Public Service Freedom to Negotiate Act in Labor Day statements

Over Labor Day weekend, President Joe Biden (D) and the American Federation of State, County and Municipal Employees (AFSCME) each reiterated their endorsements of the Public Service Freedom to Negotiate Act (PSFNA), congressional legislation originally introduced in response to the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME

Biden issued a Labor Day proclamation on Sept. 3 that said, “American workers should make their own decisions –- free from coercion and intimidation — about organizing with their co-workers to have a stronger voice in their workplaces, their communities, and their government. That is why I strongly support the Protecting the Right to Organize [PRO] Act and the Public Service Freedom to Negotiate Act.” (The PRO Act, which passed the U.S. House of Representatives in March, would amend federal labor laws for private sector workers.) 

AFSCME President Lee Saunders said in a Labor Day statement that the PSFNA would “empower public employees nationwide with collective bargaining rights, giving us the seat at the table we deserve.” AFSCME also highlighted its support for the act on its blog and Facebook page over the weekend. 

About the Public Service Freedom to Negotiate Act 

First introduced the day of the Supreme Court’s decision in Janus v. AFSCME, and reintroduced a year later, the PSFNA would “[set] a minimum nationwide standard for collective bargaining rights that all states must provide to public sector workers,” according to the bill’s fact sheet.  

Versions of the bill were introduced and referred to committee in June 2018, during the 115th Congress, and in June 2019, during the 116th Congress. Sen. Mazie Hirono (D-Hawaii) and Rep. Matt Cartwright (D-Pa.) sponsored the bill both years. Neither version of the bill made it to a vote.

The 2019 bill says, “Not later than 1 year after the date of enactment of this Act, the [Federal Labor Relations Authority] shall issue rules and take such actions that the Authority determines appropriate to establish and administer collective bargaining rights and procedures that substantially provide for the rights and procedures described in [the section of the act outlining federal minimum standards for collective bargaining rights].” The Federal Labor Relations Authority is the entity that administers federal labor relations.

The bill would establish the following rights for public employees: 

(A) to self-organization;

(B) to form, join, or assist a labor organization or to refrain from any such activity;

(C) to bargain collectively through representatives of their own choosing; and

(D) to engage in other concerted activities for the purpose of collective bargaining or other mutual aid (including the filing of joint class or collective legal claims) or protection.

For more information about each version of the bill on Congress.gov, click here.

Perspectives

Support

  • In August 2020, a report from the Economic Policy Institute (EPI) said: “Currently more than half of the states lack comprehensive collective bargaining laws for public-service workers like teachers. Public-service workers deserve the right to join together in unions to fight for stronger safety and health protections, better pay, and better working conditions.” The EPI describes its mission as “to inform and empower individuals to seek solutions that ensure broadly shared prosperity and opportunity.”  
  • A fact sheet for the Communications Workers of America’s June 2020 legislative-political conference said, “Since the outrageous, anti-worker Supreme Court decision in Janus vs. AFSCME, public service workers across the country work under this unfair free rider law. It’s time to level the playing field by establishing federal protections to guarantee public service workers the right to join together and collectively bargain.” 
  • An October 2019 AFL-CIO legislative alert said, “Unlike the private sector, there is no federal law that protects the freedom of state and local public service workers to join in a union and collectively bargain for fair wages, hours, and working conditions. … It’s time to even the playing field for working people and public servants by passing the Public Service Freedom to Negotiate Act.”  
  • A June 2019 legislative report from AFSCME said the PSFNA was “needed to unrig a system that favors the wealthy over working people. It marks another big step forward in the growing political and grassroots momentum behind unions after years of attacks on workers from right-wing special interests and politicians.”
  • In June 2019, American Federation of Teachers President Randi Weingarten said, “The Public Service Freedom to Negotiate Act closes the chasm in public sector bargaining rights, ensuring minimum standards are in place across the nation, while retaining flexibility for states to write and administer their own laws. … [T]his bill helps public workers achieve together what would be impossible alone—better and more-efficient services, dignity and a voice at work, and fair compensation and benefits for the work they do. We are proud to support it.” 

Opposition

  • In March 2021, National Right to Work Committee (NRTWC) President Mark Mix wrote, “A federal power grab introduced in the 2019-20 Congress as H.R.3464/S.1970, and strongly endorsed by Biden … would, by federal fiat, foist union monopoly bargaining on state and local fire fighters and other public-sector workers in all 50 states.” NRTWC describes itself as “a coalition of 2.8 million workers and concerned Americans fighting to break the chains of forced unionism.”
  • A January 2021 report from the Mackinac Center for Public Policy said, “The Public Service Freedom to Negotiate Act represents another tremendous threat to worker freedom. This act, while incapable of overriding the Supreme Court’s 2018 Janus v. AFSCME decision … would nevertheless drastically limit state’s [sic] abilities to manage government employees. … Most notably, the PSFNA would force all states to adopt collective bargaining with almost no limitation.” The Mackinac Center describes itself as “a nonprofit research and educational institute that advances the principles of free markets and limited government.” 
  • In September 2019, Empire Center for Public Policy fellow Ken Girardin said, “While supporters claim the proposed law merely intends to protect union bargaining rights, it would represent a major change in the federal government’s long-standing neutrality towards state and local labor relations. … Requiring binding arbitration, as opposed to simply allowing parties to come to terms directly, would be a one-way street to inflexible and expensive labor deals.” The Empire Center, a New York–based think tank, says its mission is to “Make New York a better place to live and work by promoting public policy reforms grounded in free-market principles, personal responsibility, and the ideals of effective and accountable government.”  
  • In July 2018, Competitive Enterprise Institute (CEI) policy analyst Trey Kovacs wrote, “The more concerning aspect of the bill is it grants broad power to the Federal Labor Relations Authority (FLRA), which currently governs only federal employee labor relations, to enforce the legislation and to determine whether states are in compliance with its requirements. … The FLRA’s regulations will essentially override current state labor relations law and establish collective bargaining procedures for the state.” CEI’s mission is to “promote both freedom and fairness by making good policy good politics.”

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.