Legal Watch: Post-Janus Legislation

By Nancy Long

Antiunion organizations continue to advance court cases that attempt to rewrite some of the nation’s fundamental legal rules; weaken the rights of working people, including faculty members; and exacerbate the power imbalances in our economy. On June 27, 2018, the Supreme Court in Janus v. AFSCME overruled more than forty years of judicial precedent and held that it was unconstitutional for unions to collect agency or “fair-share” fees from public-sector employees who are not union members but are covered by collective bargaining agreements. The decision applies to 5.9 million state and local public employees and has shaken up public-sector labor relations. Unions promptly stopped collecting agency fees and refunded any fees collected after the Janus ruling.

The Janus ruling laid the groundwork for another sort of class-action lawsuit, which demands the refund of agency fees paid by public employees before the ruling was issued. Plaintiffs are also seeking injunctive relief, demanding that state agency-fee statutes be declared unconstitutional and that attorneys’ fees be awarded. Such lawsuits have been filed in numerous states, and plaintiffs are seeking an estimated $150 million in refunds. These suits contend that even though the agency fees were legal when they were collected, Supreme Court decisions that overrule precedents in civil cases are retroactive because these decisions do not change the law but announce the “true law.” Only state statutes of limitations, which are generally two or three years, would limit the refunds.

These lawsuits conflict with well-established principles of law and equity and have not gained traction in the federal district courts. The federal courts have found that the unions properly stopped collecting agency fees, refunded any fees collected after Janus, and have not sought to collect fees since the ruling. Plaintiffs’ requests for an injunction prohibiting the collection of agency fees are moot because the challenged conduct cannot be reasonably expected to recur. Requests for declaratory relief (asking a court to declare the status of a matter in controversy) are also moot because there is no immediate legal controversy. Some courts went further and noted that allowing the recovery of such large sums of money could threaten the operations of unions, would deplete their treasuries, and would be an unjust legal outcome for unions.

Further, the federal courts have uniformly ruled that unions that collected agency fees prior to Janus have a good-faith defense. As the courts have stressed, unions were acting in good faith in collecting agency fees, following state statutes and Supreme Court precedent. Plaintiffs have erroneously asserted that unions should have known that the collection of agency fees in the public sector would be deemed unconstitutional in the wake of the Supreme Court’s decisions in Harris v. Quinn (2014), which limited agency fees for “quasi-public” employees, and Friedrichs v. California Teachers Association (2016), which narrowly upheld the constitutionality of agency fees in a 4–4 decision. Courts have flatly rejected this argument, finding that the plaintiffs cannot assert claims for future monetary awards based on past conduct that was constitutional when it occurred but that has now ceased after the Janus ruling. Nor do the plaintiffs have valid claims based on a subjective belief that the unconstitutional conduct may recur. Perhaps this is why the Supreme Court did not address whether Mark Janus himself was entitled to the refund he sought.

Coming off their win in Janus, antiunion organizations are also bringing constitutional challenges to the well-established legality of exclusive representation, the legal right of a union chosen by a majority of workers to represent all workers regardless of whether they are members of the union. Rolling back exclusive representation in the public sector would be an assault on the US model of collective bargaining, potentially undermining employers’ duty to bargain with unions even as it could necessitate negotiations with multiple unions or individual workers. Last spring the Supreme Court rejected two petitions seeking review of lower federal court decisions rejecting these claims. It is not clear, however, whether the court will continue to refuse to review such cases.

While Janus is the law of the land, the plaintiffs seeking injunctive relief and reimbursement of pre-Janus dues and fees have thus far failed in the federal courts. The outlook for expanding Janus, however, could change quickly if a federal circuit court rules against unions in one of the currently pending cases or if the Supreme Court grants review of a related case. The AAUP will continue to monitor and provide updates on post-Janus lawsuits.

Nancy Long is associate counsel at the AAUP.