Do you trade in your constitutional rights when you clock in? For many American workers, the right to free speech expires once the workday begins. Talking openly about their boss means putting their jobs on the line, and campaigning for a union or participating in political protest can trigger a disapproving boss’s retaliation. Despite minimum-wage laws, workplace-safety regulations, and other basic labor protections, employers have wide latitude to run their workplaces as autocratic fiefdoms. But the idea of the workplace as a Constitution-free zone has lately been challenged by workers who are the most closely tied to the mechanics of our democracy: Public-sector workers who are waging class war in the streets and facing union busters in the courts.
In recent weeks, public-school teachers in West Virginia, Kentucky, and Oklahoma have shuttered schools with massive “wildcat” strike actions and militant protests. Though technically barred from striking, public-school educators have advanced their struggles with widespread political and community support.
At the same time, a major pending Supreme Court case, Janus v. AFSCME, threatens to drastically curtail public-sector workers’ rights under law. Although government employees already face severe restrictions (the Taft-Hartley Act and other federal and state strictures sharply limit union activism, and many states have effectively outlawed striking), Janus could deal a devastating blow to public employees’ union power. The court is expected to overturn the precedent known as Abood v. Detroit, which would erase unions’ ability to collect mandatory fees at a unionized workplace, potentially triggering a downward spiral in both union membership and finances. Pro-business lobbyists have attacked the idea of mandatory fees for public-sector unions as a form of imposed political speech. For labor advocates, so-called “fair share” fees are simply that—a tax-like payment that all workers within a collective-bargaining unit, union members or not, owe to the body that negotiates their contracts with their boss, which is in this case the government.
Janus tests the concept of workplace democracy versus individual rights: Is everyday union activity intrinsically “political” in government workforces, with their unique relationship to the state? If so, then what about their union rights? Legal scholar Catherine Fisk challenges what she sees as an underlying hypocrisy in this rationale: privileging First Amendment rights of individual public workers over public union rights: