After Janus, can a Texas public employer deduct union dues from an employee's paycheck without fresh consent?

Plain-English summary

A Texas House committee chair asked the AG three questions about how the U.S. Supreme Court's 2018 decision in Janus v. AFSCME applies to payroll deductions that fund public-sector unions in Texas. Janus held that an Illinois scheme forcing public employees to subsidize a union violated the First Amendment, and that no fee may be deducted from a nonmember's wages unless the employee affirmatively consents to pay. The Court added that consenting employees are waiving First Amendment rights, so the waiver must be freely given and shown by clear and compelling evidence.

Texas law lets state, county, certain municipal, and school district employees authorize payroll deductions for union or employee-organization dues, with participation voluntary and revocable. Under the state-level administrative procedure, agencies rely on the unions themselves to collect the authorization forms and forward them, so the agency has no independent way to confirm the employee consented knowingly and without coercion.

To the first question, whether the State must give employees notice of their First Amendment rights, the AG concluded that to be consistent with Janus the State must at least make sure consent is collected in a way that ensures it is voluntary. The AG suggested that could be done in part by requiring the employee, not the union, to transmit the authorization directly to the employer, pointing to a Labor Code provision that voids a dues-withholding contract unless the employee delivers written consent to the employer.

To the second question, the AG reviewed specific notice-and-waiver language the representative proposed and concluded it was consistent with the knowing-and-voluntary requirements of Janus, so a court would be unlikely to find a constitutional defect if a public employer used it.

To the third question, about how long consent lasts, the AG concluded a one-time, perpetual authorization is inconsistent with Janus because organizations change over time and consent should not be presumed indefinite (citing Knox v. SEIU). Janus did not set an interval, so the AG said the valid duration is an open question, but a court would likely conclude that consent is valid for one year and is sufficiently contemporaneous to be constitutional, while whether some longer period works is unclear.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

What the opinion meant for those who asked

For the Legislature and for Texas public employers (state agencies, counties, qualifying cities, and school districts), the opinion's reading at the time was that Janus put the burden on the employer to be sure each dues deduction rests on the employee's affirmative, voluntary consent, proven by clear and compelling evidence. The AG signaled that the existing practice of letting the union gather and forward the authorization forms was constitutionally shaky, and that routing the authorization directly from employee to employer would help. For the committee that drafted the proposed waiver language, the opinion meant that exact language would likely survive a constitutional challenge. And on duration, the opinion told employers that a perpetual one-time authorization was a problem under Janus, while a one-year consent window would likely hold up. The AG framed the duration answer as a prediction, expressly calling the precise valid period an open question.

Common questions

Q: Can a Texas government employer still deduct union dues from a paycheck?
A: Yes, but only with the employee's affirmative consent. The AG read Janus to bar any deduction of union fees or dues from a public employee's wages unless the employee consents, shown by clear and compelling evidence.

Q: Does the union or the employee have to provide the authorization?
A: The AG suggested the safer course is for the employee, not the union, to transmit the authorization directly to the employer, so the employer can confirm the consent was voluntary. It pointed to Labor Code section 101.004, which voids a dues-withholding contract unless the employee delivers written consent to the employer.

Q: How long does a consent to dues deduction last?
A: The AG concluded a one-time, perpetual consent is inconsistent with Janus. It predicted a court would likely uphold a consent valid for one year, and said whether a longer period works is unclear.

Q: Was specific notice language approved?
A: The AG reviewed the waiver language the requestor proposed and concluded it was consistent with Janus's knowing-and-voluntary requirements, so a court would be unlikely to find a defect if a public employer used it.

Background and statutory framework

The controlling federal case is Janus v. American Federation of State, County, & Municipal Employees, 138 S. Ct. 2448 (2018), which held that public employees cannot be compelled to subsidize a union and that fees may not be deducted absent affirmative, clearly-shown consent. The AG also relied on Knox v. Service Employees International Union, Local 1000, 567 U.S. 298 (2012), for the point that an employee's choice to support a union can change over time. The Texas deduction framework came from Government Code sections 403.0165 and 659.1031 and 34 Texas Administrative Code section 5.46 (state employees), Local Government Code sections 141.008 and 155.001-.002 (municipal and county employees), and Education Code section 22.001 (school district employees). The suggestion that the employee deliver consent directly to the employer drew on Labor Code section 101.004.

Citations and references

Statutory and regulatory provisions:

• Tex. Gov't Code § 403.0165; § 659.1031
• 34 Tex. Admin. Code § 5.46
• Tex. Loc. Gov't Code § 141.008; § 155.001; § 155.002
• Tex. Educ. Code § 22.001
• Tex. Lab. Code § 101.004

Cases:

• Janus v. American Federation of State, County, & Municipal Employees, 138 S. Ct. 2448 (2018)
• Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298 (2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0310
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0310.pdf

Original opinion text

May 31, 2020

The Honorable Briscoe Cain
Chair, House Select Committee on Driver's License Issuance & Renewal
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0310

Re: Application of the United States Supreme Court's Janus decision to public employee payroll deductions for employee organization membership fees and dues (RQ-0330-KP)

Dear Representative Cain:

You ask three questions related to "payroll deductions being used to support public sector unions" in Texas in light of the 2018 United States Supreme Court decision in Janus v. American Federation of State, County, & Municipal Employees.[1] In Janus, the Court addressed an Illinois statute requiring public employees "to subsidize a union," even in instances when they chose not to join and strongly objected to the positions taken by the union. 138 S. Ct. 2448, 2459-60 (2018). Under that statute, if a majority of the employees in a bargaining unit voted to be represented by a union, it was designated as the exclusive representative of the employees. Id. at 2460. While employees were not required to join the union, those who declined were still assessed an agency fee to cover costs associated with collective bargaining, contract administration, and the union's pursuit of matters affecting wages, hours, and conditions of employment. Id. at 2461.

Finding that this procedure compelled subsidization of private speech, the Court held that the statute violated the First Amendment and could not stand. Id. at 2464, 2486. Relevant to your questions, the Court emphasized that no fee to a 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." Id. at 2486. The Court further explained that by "agreeing to pay [the union], nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed." Id. Instead, "to be effective, the waiver must be freely given and shown by 'clear and compelling' evidence." Id.

In Texas, the Legislature permits employees of state agencies to authorize payroll deductions for payment of membership fees or dues for unions and other eligible state employee organizations. TEX. GOV'T CODE §§ 403.0165(a), 659.1031(a); see also 34 TEX. ADMIN. CODE § 5.46(a)(15) (defining a "state employee organization" to include "a union . . . that advocates the interests of state employees"). An employee authorizes a payroll deduction by completing an authorization form and submitting the form to the organization to which the membership fee will be paid. 34 TEX. ADMIN. CODE § 5.46(b)(1)(C). The authorization form is created by the organization and must be approved by the Comptroller. Id. § 5.46(e)(1).

The Legislature also authorizes counties and certain municipalities to do the same for their employees. See TEX. LOC. GOV'T CODE § 141.008(a) ("The governing body of a municipality with a population of more than 10,000 may deduct from a municipal employee's monthly salary or wages . . . payment of membership dues to a bona fide employees' association[.]"); id. § 155.001(a)(2) ("The commissioners court, on the request of a county employee, may authorize a payroll deduction to be made from the employee's wages or salary for . . . payment of membership dues in a labor union or bona fide employees association."). And school district employees are "entitled to have an amount deducted from" their salaries for "membership fees or dues to a professional organization." TEX. EDUC. CODE § 22.001(a). In each instance, participation by the employee is voluntary and can be revoked by the employee at any time. See TEX. GOV'T CODE § 403.0165(a), (c); TEX. LOC. GOV'T CODE § 155.002(a), (b); TEX. EDUC. CODE § 22.001(b). The payroll deductions generally remain in effect until an employee authorizes a change or revocation of the deduction. TEX. GOV'T CODE § 403.0165(a); TEX. LOC. GOV'T CODE §§ 141.008(e), 155.002(b); TEX. EDUC. CODE § 22.001(b). With these procedures as background, we turn to your specific questions.

You first ask whether, in light of the Supreme Court's Janus decision, "the State of Texas and its political subdivisions have an obligation to provide their employees with notice of the First Amendment rights against compelled speech." Request Letter at 1. The Court in Janus emphasized that an employee's payments to a union impact the employee's First Amendment rights, and it made clear that a governmental entity may not deduct funds from an employee's wages to provide payment to a union unless the employee consents, by clear and compelling evidence, to the governmental body deducting those fees. 138 S. Ct. at 2486.

Under the current administrative procedure authorizing deductions at the state level, state agencies rely on the unions and employee organizations to obtain consent from employees. See 34 TEX. ADMIN. CODE § 5.46(b)(1)(C) (requiring state employees to submit the authorization form "to the eligible organization to which the membership fees will be paid").[2] The organizations serve as a middleman, receiving the authorizations from employees and forwarding them to the state agencies, which make the requested payroll deductions. In doing so, state agencies appear to have no independent method of confirming that an employee knowingly and voluntarily consented to the payroll deduction without any coercion or improper inducement. To be consistent with Janus, at a minimum, the State must ensure that employee consent to a payroll deduction for membership fees or dues in a union or employee organization is collected in a way that ensures voluntariness. This assurance could be secured, in part, by requiring that an employee, and not an employee organization, directly transmit to an employer authorization of the withholding. See TEX. LAB. CODE § 101.004 (voiding a contract that permits payroll withholding for dues unless the employee delivers written consent to the employer to authorize the withholding).

You next ask whether the following language would be legally sufficient to provide notice of the nature and scope of these rights to an employee:

I recognize that I have a First Amendment right to associate, including the right not to associate. My rights provide that I am not compelled to be a member of a labor organization. I am not compelled to pay a labor organization any money as a condition of employment, and I do not have to sign this consent form. However, I am waiving this right and consent to union membership. I also consent to having union dues deducted from my paycheck. My consent may be revoked at any time, resulting in the immediate termination of any financial agreement to pay the union dues, fees, or any other form of payment.

Request Letter at 4. The Court in Janus required that consent to payroll deductions for union membership dues, and the accompanying waiver of certain First Amendment rights of the employee, be "freely given and shown by 'clear and compelling' evidence." 138 S. Ct. at 2486. But it did not provide specific language or a method by which a governmental entity must obtain consent from an employee to make a payroll deduction for union dues or fees. The language you propose is consistent with the knowing and voluntary requirements emphasized in Janus. See id. If a public employer used such language to obtain consent for an employee payroll deduction, a court would be unlikely to find any constitutional defect.

In your final question, you ask about the effective duration of employee consent to a payroll deduction for membership dues or fees to a union or employee organization. Request Letter at 4. In particular, you question whether some periodic inquiry into the public employee's continued consent is required, and if so, the period of time consent remains valid without reauthorization. Id. Under the current Texas laws authorizing payroll deductions, an employee's authorization remains effective until the employee affirmatively revokes or amends it, effectively allowing continuous consent. TEX. GOV'T CODE § 403.0165(a); TEX. LOC. GOV'T CODE §§ 141.008(e), 155.002(b); TEX. EDUC. CODE § 22.001(b). However, a one-time, perpetual authorization is inconsistent with the Court's conclusion in Janus that consent must be knowingly and freely given. 138 S. Ct. at 2484, 2486. Organizations change over time, and consent to membership should not be presumed to be indefinite. See Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 315 (2012) (explaining that the choice to support a union may change as a result of changes in the union's political advocacy).

That said, the Court in Janus did not articulate the appropriate interval in lieu of a one-time consent that extends indefinitely for employee deductions. The period of time for which employee consent to a payroll deduction validly operates therefore remains an open question. However, a court would likely conclude that consent is valid for one year from the time given and is sufficiently contemporaneous to be constitutional. See id. (explaining that giving employees an opportunity once per year to opt into dues payments is tolerable as long as employees can make an informed choice). While a court would likely conclude that a one-year consent period satisfies the constitutional requirements addressed in Janus, the extent to which some lengthier period satisfies the requirement is unclear.

S U M M A R Y

The United States Supreme Court held in Janus v. American Federation of State, County, & Municipal Employees that a public employer may not deduct a fee from an employee's wages to pay union fees or dues unless the employee affirmatively consents to pay, and the Court required that the consent be shown by clear and compelling evidence. Thus, at a minimum, public employers must ensure that employee consent to a payroll deduction for membership fees or dues in a union or employee organization is collected in a way that ensures voluntariness, such as requiring direct provision of authorization from an employee to an employer.

The Court in Janus did not provide specific language or a method by which a public employer must obtain consent from an employee. If a public employer used the language proposed, a court is unlikely to find any constitutional defect.

A one-time, perpetual consent to a payroll deduction for membership fees or dues is inconsistent with the Court's holding in Janus. A court would likely conclude that consent for one year from the time given is valid and is sufficiently contemporaneous to be constitutional.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] Letter from Honorable Briscoe Cain, Chair, House Select Comm. on Driver's License Issuance & Renewal, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Jan. 27, 2020).

[2] The statutes authorizing municipalities, counties, and school districts to make deductions do not articulate the same process for employees to authorize the deductions. To the extent that those entities rely on the unions or employee organizations to obtain consent, this analysis likewise applies to those entities. See TEX. EDUC. CODE § 22.001(a)(1) (requiring school employees to file with their districts "a signed written request identifying the organization and specifying the number of pay periods per year the deductions are to be made"); TEX. LOC. GOV'T CODE § 155.002(a)(2) (requiring a county employee's request for a payroll deduction "be submitted to the county auditor").