Miranda for Janus: The Government’s Obligation to Ensure Informed Waiver of Constitutional Rights
46 Pages Posted: 19 Apr 2021
Date Written: April 13, 2021
Overturning forty years of precedent, the Supreme Court held in Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), that public employees have a First Amendment right to refrain from joining or subsidizing a union because the union may use their money to speak on a wide range of inherently political matters, including speech with which they may disagree. Therefore, the state may deduct dues from employee paychecks and transfer the money to the union only if employees affirmatively waive their First Amendment rights. As a matter of constitutional due process, this means that the choice to subsidize the union depends on employees’ knowledge that their First Amendment rights are implicated Yet, in response to Janus, California enacted a law that effectively stands as an obstacle to workers’ full exercise of their First Amendment rights by giving unions—not employers—the authority to inform employees that they have a constitutional right not to join the union. This law serves as a model for other states’ existing and proposed legislation. Workers cannot exercise a right they do not know they have, and the state cannot abdicate its duty to ensure a knowing and voluntary waiver of constitutional rights. Both the First Amendment and due process demand more. Modeled on the principles underlying Miranda v. Arizona, 384 U.S. 436 (1966), this article argues that the Fourteenth Amendment’s Due Process Clause requires the government employer, prior to deducting union dues from paychecks, to provide adequate information about workers’ First Amendment rights such that employees are capable of making a knowing and voluntary waiver, if they so choose.
Keywords: First Amendment, due process, waiver, labor law, public employement, public employee unions
JEL Classification: J50, J58, J45, J48
Suggested Citation: Suggested Citation