The repeal of right-to-work left some public sector workers confused about their employment rights. But nothing has changed for them. Government workers still do not have to pay union dues or agency fees as a condition of employment.

“Passing bills that are currently unconstitutional can mislead employees into believing that the law has changed and that they must now pay a union,” said Steve Delie, director of labor policy at Mackinac Center for Public Policy. “Public sector employees across the country have a First Amendment right to not pay a union thanks to the U.S. Supreme Court’s Janus v. AFSCME decision. Repealing right-to-work does nothing for public sector employees except cause confusion.”

Although public sector workers cannot be forced into paying unions, due to the 2018 U.S. Supreme Court decision in Janus vs. AFSCME, Democrats in the Michigan Legislature introduced and passed unconstitutional legislation to the contrary. The original version of House Bill 4004 stated that public sector workers would have to pay union dues or agency fees as a condition of employment.

An amendment offered on the House floor introduced a trigger mechanism. The law requiring public sector workers to pay unions would only be valid under two conditions, the amendment said: if the Supreme Court Janus ruling is overturned or if there is an amendment to the U.S. Constitution to authorize public sector bargaining with agency.

Sen. Thomas Albert, R-Lowell, offered an amendment that would have cleared up any confusion for public sector workers. It would have required union representatives to provide employees with a notice of their Janus rights. The Democratic majority rejected the amendment.

Public sector workers are employees of federal, state, or local government agencies and offices. Jobs in the public sector include public school teachers, emergency service responders, health care workers, and employees in state agencies such as the Michigan Department of Health and Human Services or the Michigan Department of Natural Resources.

House Speaker Joe Tate, D-Detroit, was asked in an email why House Democrats introduced an unconstitutional law and refuse to ensure public sector workers understand their rights.

His office has not responded.

Michigan Attorney General Dana Nessel issued an official opinion Tuesday that the state’s mandated tax cut, taking the income tax rate from 4.25% to 4.05%, is one-time-only reduction. In an opinion dated March 23 but released to the public nearly a week later, Nessel claims the conditions that triggered the reduction must be met every year the tax cut is applied.

Opinions by attorneys general do not have the full weight of law but are often treated as guidance for state officials. Nessel’s opinion came in response to a request from Michigan Treasurer Rachel Eubanks, whose department handles tax collection.

Nessel admits her opinion turns on an interpretation of the Income Tax Act. And in Nessel’s interpretation, the tax cut is an annual, not a perennial, event. It’s a situational matter, not a from-this-day forward one. Nessel writes:

In 2015, the Income Tax Act was amended to provide a mechanism by which the income tax rate would be reduced in circumstances where a percentage increase in the general fund-slash-general purpose revenue for the preceding fiscal year exceeded the inflation rate for that same period and the inflation rate was positive....

It is apparent that the legislature intended any income tax reduction ... to be for that tax year only.

In Lansing, Nessel’s interpretation is novel.

Read it for yourself: Dana Nessel’s AG opinion on the 2015 Income Tax Law

As The Detroit News wrote, “Nessel’s legal opinion runs counter to that of the nonpartisan House Fiscal Agency and the Republican architects of the 2015 tax cut trigger.”

While Nessel says she studied the language and intent of the 2015 bill, she emerged from that study with a reading distinct from what its authors say they intended. Some are still in Lansing, and several spoke up in response to Nessel’s opinion.

Rick Snyder was governor in 2015 and signed the tax law into effect.

“The income tax trigger was intended to be a permanent reduction activated when state government had a large surplus,” Snyder said in a joint statement with Republican legislative leaders from that time.

“I was there in 2015, and it could not have been more clear what the language said or what our intent was,” said Senate Minority Leader Aric Nesbitt.