Supreme Court protects workers’ First Amendment rights, overturns lower court injunction against Paycheck Protection Act

Charleston, WV (November 23, 2021) – In a 3-2 decision, West Virginia’s Supreme Court reversed a preliminary injunction issued by a Kanawha County Circuit Court judge against West Virginia’s Paycheck Protection Act. In September, attorneys at the National Right to Work Legal Defense Foundation, a charitable nonprofit dedicated to protecting workers’ legal rights from compulsory unionism, filed an amicus brief urging the Court to reverse the injunction, which union bosses obtained as they challenged the new law in Court.

Foundation staff attorneys argued that the Paycheck Protection Act is not only valid, but essential to protect West Virginia public sector workers’ rights under the Foundation-won 2018 Janus v. AFSCME U.S. Supreme Court decision. To ensure compliance with Janus the Paycheck Protection Act prohibits the government from automatically deducting union dues or fees from public employees’ paychecks, leaving voluntary union members free to make their own arrangements for payment of union dues if they want.

“The Act prevents the government from unwittingly violating their employees’ First Amendment rights by seizing union dues from them without their voluntary, affirmative consent and knowing, intelligent waiver of those rights, as required under Janus,” the Foundation’s brief reads. “The State’s protection of its employees’ First Amendment rights does not violate the constitutional rights of Respondents West Virginia AFL-CIO, et. al. (‘the Unions’), because the Unions have no constitutional entitlement to employees’ money or to the employer’s administration of union dues deduction schemes.”

The Supreme Court’s Janus v AFSCME ruling made union dues for public sector workers completely voluntary. The Court held that no union dues or fees can be taken from a public worker’s wages without a knowing and intelligent waiver of that employee’s First Amendment right not to pay, and that such a waiver “cannot be presumed.” The decision reasoned that, because all public sector union activities involve lobbying the government, forcing public sector workers to pay any money to a union amounts to forced political speech forbidden by the First Amendment.

In the amicus brief Foundation attorneys argued the West Virginia Supreme Court of Appeals should overturn the preliminary injunction, because West Virginia has a legitimate interest in protecting its employees’ First Amendment rights, and because union officials’ lawsuit against the Paycheck Protection Act has no chance of success on the merits. Yesterday’s decision agreed with those arguments, citing Janus, and reversed the injunction as Foundation attorneys had advocated.

This is not the first time the Foundation has defended state policies designed to protect public employees’ First Amendment Janus rights. Last year, Foundation staff attorneys filed detailed comments backing a Michigan Civil Service Commission (MiCSC) policy that required public employers to obtain annual consent from their workers before taking union payments out of their wages. Officials from the United Auto Workers (UAW) and other unions ultimately abandoned a lawsuit contesting the rule in October 2020.

Foundation staff attorneys also filed 10 legal briefs defending West Virginia’s Right to Work law, which was the target of a legal attack by union officials from 2016 until last year. Among the Foundation’s filings were amicus briefs for Reginald Gibbs, who worked as a lead slot machine technician with the Greenbrier Hotel in White Sulphur Springs, WV, and Donna Harper, who worked as a laundry aide and nursing assistant at the Genesis HealthCare Tygart Center in Fairmont, WV. Both workers opposed paying money to the union bosses in power at their workplaces and supported the protections the West Virginia Right to Work law afforded them. 

“West Virginia’s Paycheck Protection law properly takes the government out of the union dues collection business, and in the process helps ensure that no union payments are taken from public employees in violation of their First Amendment rights recognized in Janus,” commented National Right to Work Foundation President Mark Mix. “The Supreme Court of Appeals made the right decision by reversing the Circuit Court’s injunction which was issued under the outrageous premise that union bosses have a legal right to use taxpayer-funded government payroll systems to divert workers’ money into union coffers.”


This post was originally published on the National Right to Work Legal Defense Foundation website.

You can exercise your Janus Rights by filling out a few forms on our website. To take action by supporting The National Right To Work Committee and fueling the fight against Forced Unionism, click here to donate now.


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