The Honorable James R. Buck
AGO 2020-5
Official Opinion No. 2020-5
Indiana Attorney General Opinion
State of Indiana Office of the Attorney General
June 17, 2020
The
Honorable James R. Buck
Indiana
State Senate
200
West Washington Street
Indianapolis,
IN 46204
RE:
Payroll deductions for public sector employees
BACKGROUND
Indiana
has a robust set of laws that empower public and private
sector employees to freely decide whether to join or support
labor unions. First, Indiana is a “Right to Work”
state. Indiana’s Right to Work law provides that an
individual may not be required to become or remain a member
of a labor union, pay dues, fees, assessments, or other
charges to a labor union as a condition of employment. Ind.
Code § 22-6-6-8. The law declares a contract, agreement,
understanding, or practice between a labor union and an
employer that violates these provisions unlawful and void,
and provides criminal penalties and civil remedies for
violations. Ind. Code §§ 22-6-6-9, 22-6-6-10,
22-6-6-12. The Right to Work law only applies to private
sector industry and does not apply to federal, state, or
local employees. Ind. Code § 22-6-6-1.
Second,
Indiana law prohibits collective bargaining between the state
and labor unions. Ind. Code § 4-15-17-4. It makes
strikes by state employees illegal. Id; see also Ind. Code
§ 4-15-17-8. The law also prohibits the state from
recognizing a union or other employee organization as a
representative of state employees, bargaining collectively
with labor unions, entering into a collective bargaining
agreement, or requiring an employee to join or financially
support a labor union. Ind. Code § 4-15-17-5. State
employees may still be a member of or otherwise associate
with labor unions, consult with others for the common good of
employees, financially support a labor union, and petition
for the redress of grievances. Ind. Code § 4-15-17-6.
The statute declares any contract, agreement, settlement,
condition of cooperation, or any other device resulting from
negotiations between the state and a labor union as illegal
and of no effect. Ind. Code § 4-15-17-7.
Some
public sector unions are established and governed by other
Indiana statutes, political subdivisions, or local
ordinances. For example, Indiana Code art. 20-29 provides
that a school employee (teacher) may not be required to join
or financially support a school employee organization (union)
through the payment of fair share fees, representation fees,
professional fees, or other fees. Public Safety, Regional
Transportation Authority, Urban Mass. Transportation System,
and other local government personnel are other examples of
individuals permitted to join a public sector union provided
for in Title 36 of the Indiana Code.
Recently,
the Supreme Court of the United States held 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 consents to pay.” 138 S.Ct. 2448,
2486 (2018). In Janus, Mark Janus, a state employee of
Illinois, challenged provisions of the Illinois Public Labor
Relations Act, which allowed state and local employees to
unionize. In sum, Mr. Janus refused to join the union and
filed suit challenging the constitutionality of the state law
authorizing “agency fees” which were a percentage
of the full union dues. The agency fee was designed to cover
union expenditures attributable to those activities
“germane” to the union’s collective
bargaining activities (chargeable expenditures), but not the
union’s political and ideological projects
(nonchargeable expenditures).
The
U.S. Supreme Court held that Illinois’ agency...
