In 2018, the Supreme Court of the United States ruled that requiring public-sector workers to pay dues or fees to a union without affirmative consent violates their First Amendment rights. In other words, the ruling in Janus v. AFSCME prohibited public-sector unions from collecting compulsory payments from workers. Since that time, public unions have relied on their allies in state legislatures across the country to bolster their control over public sector workers and undermine the Janus decision. Conversely, workers have taken a stand against their unions, through opt-outs and litigation, to try and gain control over their own employment.
In August 2019, the Commonwealth Foundation released a report that ranked states based on their public-sector labor laws. They used 11 policy measures to fairly assess states’ laws, administrative codes and regulations related to public-sector workers. Under the foundation’s assessment, Maine received a D grade (as seen to the left) because post-Janus general labor policy continues to adversely affect taxpayers. However, the report indicated there were 29 other states that earned a C grade or above. The criteria used to determine rankings can be found here and Maine’s assessment is illustrated in the table below.
While there are more than 100 pieces of legislation related to Janus that were or are being considered by state legislatures in 2019, workers have taken another approach to creating change. Public-sector employees have been inspired by the Janus ruling and are trying to achieve additional reforms that protect their First Amendment rights through litigation across the nation. The Commonwealth Foundation’s report tracked 73 lawsuits post-Janus. These new challenges come in the form of recovering lost dues and agency fees that were collected before or after the Janus decision, the constitutionality of opt-out windows, the availability of public employees’ information to the public, and challenging the idea of exclusive representation.
Dues and Agency Fee Recovery
Solomon v. AFSCME DC 37 — Filed July 23, 2019
Plaintiff Scott Solomon, a city planner in the New York City Department of City Planning, is seeking a refund of agency fees collected between July 23, 2016 and June 27, 2018. Prior to the Janus decision, the New York Public Employees’ Fair Employment Act gave unions that were certified as the exclusive representative of public employees in collective bargaining the ability to collect agency fees from public employees who were not members of the union. Solomon is seeking damages in the full amount of agency fees and assessments seized from their wages, plus interest, for violations of their First Amendment Rights.
Because Solomon was required to pay fair share fees as a condition of employment before the Janus decision ruled the practice unconstitutional, he may be entitled to recover the dues he paid to the union within his states’ statute of limitations.
Mattos et al., v. AFSCME Council 3 — Filed September 3, 2019
In this case, 19 plaintiffs filed a federal class-action lawsuit against their public sector union to recover non-member agency fees collected before the Janus ruling. More specifically, they want the dues collected between September 4, 2016 and June 27, 2018. The plaintiffs assert that AFSCME Council 3 collected agency fees prior to the Janus decision without affirmative consent and as a condition of employment. Because these funds were collected without the affirmative consent of the plaintiffs, they are seeking to be awarded damages or restitution in the full amount of agency fees and assessments seized from their wages, plus interest, for violations of their First Amendment Rights.
Halloran v. AFSCME Council 5 — Filed September 16, 2019
Susan Halloran, a senior account clerk at Inver Hills Community College, was pressured to join AFSCME Council 5 on April 15, 2019. During a training session, she was asked to sign a dues authorization form on a union representatives’ tablet. When she asked how much would be deducted from her paycheck, the union representative was unable to apprise her of the exact percentage that would be taken out. Halloran claims she felt pressured to sign the dues authorization form and was not told she had a choice to decline as a result of the Janus decision.
After calculating the cost of union dues annually, Halloran decided to contact the union representative to withdraw her registration, partially due to the cost of medical bills for cancer treatments. The union representative declined her registration and instead told her she is responsible for an entire year of dues. As a result, Halloran is seeking a declaration that the union card she signed under pressure cannot be used as a basis for affirmative consent because “such authorization was given without knowing and intelligent waiver of her First Amendment rights.” In addition, she wants the court to declare that the withdrawal of her waiver was timely, made in good faith and would not have caused substantial harm to other parties. Lastly, she wants to be awarded damages for the dues that have been collected since April 2019.
Because she felt pressured and was unaware of her rights under Janus, Halloran should have the ability to opt out of paying dues to the union, especially if it is going to hinder her ability to pay for essential medical bills.
Wenzig v. SEIU Local 668 — Filed w/ Amendment October 28, 2019
Janine Wenzig, an employee in the Pennsylvania Department of Human Services, paid approximately $440 in agency fees annually to SEIU Local 668 as a non-member. In this case, Wenzig and Catherine Kioussis are seeking to recover the funds they and other state employees paid to the union as non-members between August 7, 2017 and June 27, 2018. Again, this is a case whereby non-union public employees were compelled to fund their union without affirmative consent before the Janus ruling. Therefore, they may be eligible to recover damages in the amount paid in agency fees between August 2017 and June 2018.
Stroeder v. SEIU Local 503 — Filed July 30, 2019
Colleen Stroeder, an employee at the Oregon Department of Transportation, was told by her supervisor that she was required to become a member of SEIU Local 503 and pay union dues. As a result, around $800 was deducted from her paychecks annually. After the Janus decision, Stroeder learned that she was not required to join the union or pay compulsory dues. Thereafter, she sent a letter to the SEIU to resign her membership and cease dues deductions.
In response, the union directed her to an opt-out window codified in state law that had passed 10 days before she sent her union resignation letter. According to state law, employees had a mere 15 days to opt-out of their union annually. Therefore, the SEIU rejected her request to opt-out and cease dues deductions. As a result, Stroeder filed a lawsuit to challenge to the opt-out window and to recover dues paid to the union. According to the plaintiff, the opt-out window prevents her from freely associating or disassociating with the SEIU.
Public employees should have the option to join or leave their workplace’s union as they please. Oftentimes, labor organizations and public officials create opt-out windows to make it easy to join a union but extremely difficult to leave.
Jackson v. Napolitano — Filed July 30, 2019
Michael Jackson and Tory Smith, employees at the University of California, San Diego, believed they were required to join and pay dues to their union prior to the Janus decision. Once they learned about their rights under Janus, they tried to opt out of Teamsters Local 2010. Due to a gag rule (a law that prohibits employees from speaking with their employer and vice versa about payroll deductions, union membership and their rights under the Janus decision) on the books in California, Jackson and Smith are prohibited from discussing their membership or payments to Local 2010 with the university.
When they approached the union about withdrawing, they were told they would not be able to opt-out until a 30-day window before the expiration of their contract. For them, the contract is in effect until March 31, 2022. If Jackson and Smith chose to do nothing, they would pay approximately $1,850 and $1,950 to Teamsters Local 2010, respectively, before their union’s contract expires.
Both Jackson and Smith were not afforded the opportunity to give free and affirmative consent to waive their First Amendment rights before the Janus ruling. Before the Supreme Court’s decision, they were presented with a false dichotomy; either pay dues for membership or agency fees for non-membership. Before Janus, they did not have the choice to refuse having funds deducted from their paycheck and sent to the union. Therefore, both plaintiffs are seeking monetary damages for the amount of dues they paid to the union without valid, affirmative and freely-given consent.
In addition, the plaintiffs are seeking the gag rules be ruled unconstitutional when affirmative consent is not freely and expressly given. In other words, employees should be able to learn about their rights under Janus from their employer. Further, they want a declaratory judgement that the union membership cards signed before Janus cannot be considered valid, freely-given affirmative consent because Jackson and Smith were presented with a false dichotomy of choices.
Uradnik v. Inter Faculty Organization — Filed December 4, 2018
Kathleen Uradnik, a political science professor at St. Cloud State University in Minnesota, decided to challenge the idea that the labor organization at her workplace is the sole representative for public employees and has the exclusive right to speak on their behalf. She made the choice not to join the Inter Faculty Organization because she opposes some of the stances the union takes during collective bargaining and when they advocate for political causes. In addition, the Inter Faculty Organization’s contract prevents Uradnik from serving on any faculty committees, including the Faculty Senate, because she is not a member.
Through Minnesota state law, labor organizations are granted the power of exclusive representation, or the ability to negotiate on behalf of all employees in a workplace, a provision unions fight for in labor law. Even employees who disagree with their unions’ stances during collective bargaining are silenced because of the unions’ “right” to exclusive representation.
Uradnik is seeking a preliminary injunction on designating unions as the exclusive representatives for public sector employees. On April 29, 2019, the Supreme Court of the United States declined to grant certiorari to Uradnik but gave her a chance to have the case heard before a U.S. District Court based on its merits.
Reisman v. Associated Faculties of the University of Maine — Filed August 10, 2018
Jonathan Reisman, an economics professor at the University of Maine at Machias and former grievance officer for his union, is also attempting to challenge exclusive representation in court. More specifically, he is challenging the Maine Labor Relations Act, which prohibits public employees from representing themselves in collective bargaining and other negotiations with the university. Like other workers across the nation, Reisman was unhappy with some of the political and policy stances taken by the state and national partners with whom his union is affiliated.
Because a portion of his dues were funding his union’s state and national affiliates, he decided to opt-out and resign from his position as a grievance officer. Despite his decision, the union still acts as the exclusive representative for his workplace and bargains on his behalf. When the Associated Faculties of the University of Maine (AFUM) speaks to the university about wages, hours, benefits and other conditions of employment, Reisman cannot contribute his input to that dialogue. In other words, this relationship with AFUM is non-consensual and Reisman wants it terminated.
In the lawsuit, Reisman is seeking a preliminary injunction to prevent AFUM from representing non-union employees. Last month, Reisman lost his battle with the 1st Circuit Court of Appeals in Boston when they upheld the U.S. District Court’s decision to dismiss the case. However, his attorney intends to appeal the decision to the Supreme Court of the United States. If the Supreme Court decides to grant certiorari, it may become a landmark case in the fight to protect workers’ First Amendment rights.
Suhr v. New York State Department of Civil Service (NYSDCS) — Filed October 25, 2019
On April 24, 2019, Daniel Suhr filed a Freedom of Information Law (FOIL) request with the New York Department of Civil Service to obtain public employees’ names, home zip codes, hire dates, labor organizations, bargaining units and payroll deduction selections to inform them of their newfound rights under Janus. The NYSDCS released all of the information except zip codes attached to the names of individual public employees and cited Governor Cuomo’s Executive Order 183. After Suhr was denied upon appeal to the NYSDCS FOIL Appeals Officer, he filed a petition with the New York Supreme Court to declare the FOIL Appeals Officer is in error and that Executive Order 183 does not prevent the NYSDCS from administering the zip codes of public employees. In addition, Suhr wants the court to direct the NYSDCS to give him the information sought.
It is clear the Janus decision has sparked other public-sector employees to speak out against their unions to reaffirm their constitutional rights. While the list of litigation above is non-exhaustive, it illustrates how public sector workers feel about unions restricting their First Amendment rights in the workplace.