Are citizens who are solicited to sign up for the Jelly of the Month Club entitled to more legal protections than public servants who are solicited to sign away their First Amendment rights? Recent guidance issued by the Federal Trade Commission seems to suggest that is the case.
The FTC’s guidance provides that businesses wanting to lock consumers into automatically renewing contracts for goods or services — like monthly jelly, cigar, or wine subscriptions — must satisfy a slew of requirements to ensure those consumers know what they are getting into. Among other things, the FTC majority declared that “marketers must not erect unreasonable barriers to cancellation or impede the effective operation of promised cancellation procedures and must honor cancellation requests that comply with such procedures.”
The FTC’s guidance is similar to California’s Automatic Renewal Law, which requires businesses to notify consumers of automatic renewal conditions in “a clear and conspicuous manner.” Businesses must also ensure that consumers “affirmatively consent” to such renewals, provide consumers with a record of the arrangement and a cancellation policy, and give them an “easy-to-use mechanism for cancellation,” such as a toll-free number or online service.
California and the federal government, however, do not require equivalent protections to the First Amendment rights of the state’s 2.5 million public sector employees. Take the case of Sam Doroudi, a service desk analyst at UC San Diego.
Under the Supreme Court’s decision in Janus v. AFSCME, Doroudi has a First Amendment right not to support a public sector union financially. However, as part of the onboarding process for his job, Doroudi was ushered into a mandatory meeting with union officials who told him he had to sign a membership card. Nowhere on the card, or during that mandatory orientation, was he told of his First Amendment rights under Janus.
Doroudi later learned of his constitutional rights and promptly resigned from the union. To his surprise, Doroudi was informed that he was locked into paying union “service fees” even after his resignation. According to union officials, the card he signed included an annual 30-day escape period for stopping dues deductions, which were automatically taken out of his paycheck. Unless revoked during that period, the card automatically renews, and nonmember employees must pay union fees for another year. “It’s like Hotel California,” says Doroudi. “You can start paying union dues anytime you want, but you can never leave.”
Unfortunately, California and many other states do little to protect employee rights from the machinations of public sector unions. Union officials do not have to tell public employees that they have a right not to sign union membership cards. Public sector unions are not required to conspicuously notify employees that these cards will lock them into paying union fees even if they resign their membership. Furthermore, public sector unions often impose onerous restrictions on when employees can cancel dues deductions, such as short, 10- to 30-day window periods for providing notice of cancellation.
A business could never get away with treating customers in this high-handed fashion. For example, the parent company of JDate and Christian Mingle paid a $500,000 fine and almost $1 million in restitution for assuming subscribers wanted to renew their memberships. These services were required to give consumers notice of any renewal and to secure affirmative authorization to renew.
In contrast, as Doroudi’s experience illustrates, California law leaves public employees at the mercy of self-interested union officials when it comes to signing away their First Amendment right not to support a public sector union for a year or more. By contrast, California law and federal law provides robust protections to consumers who are solicited to enter into mundane gym memberships or subscriptions for the jelly of the month.
Public employees’ First Amendment rights are no less deserving of robust legal protections than consumers’ rights. No one should be subjected to unfair and deceptive practices. The question is, will states stand up for their employees’ rights?
William Messenger is a National Right to Work Foundation staff attorney. David Osborne is the CEO of Americans for Fair Treatment, a community of public sector employees.