Fallout from the Union Dues Supreme Court Decision

On June 27, 2018, the U.S. Supreme Court released a landmark decision in Janus v. American Federation of State, Country, and Municipal Employees, Council 31 (2018). The Court ruled that a state law requiring public sector employees, who choose not to be in the union, to pay a “fair share” fee to the union, violates the First Amendment. This decision overturned a Supreme Court decision from 1977. We reported this in our July 2, 2018 Hot Topics article.

Since that time, several states that do not maintain right-to-work laws have received cease-and-desist letters demanding that they stop deducting union fees from the paychecks of government workers. We don’t know which states these are, as that information has not been released, but nearly half of states do not maintain right-to-work laws. Colorado is unique as it is a “modified” right-to-work state. Liberty Justice Center, the public-interest law firm that sent the letters, expects to send such letters to all states without right-to-work laws.

Lawsuits are also starting to trickle in. For example, a suit has been brought against the American Federation of State, County, and Municipal Employees, Council No. 5. A group of correction officers in a bargaining unit has also sued the Santa Clara County Correctional Peace Officers Association, a public sector union in California. These complaints are part of a wave of lawsuits being filed by public sector employees who want refunds of union fees they were required to pay to cover the cost of bargaining for a contract that covers members and nonmembers alike.

The cease-and-desist letters seem designed to make any union in a non-right-to-work state ask anew for authorization to deduct union dues. The letters are by their very nature prospective, i.e., they seek to change practices for the future. However, the employee lawsuits are retrospective, demanding refunds from past dues paid. Legally speaking, the cease-and-desist letters are likely to have strong legal backing as they are forward looking, and are mere tools to make sure states are following the Supreme Court ruling. The real question in the courts will be whether the unions must pay back dues to government employees from whose wages deductions were made. This is a common question when the Supreme Court changes its precedent, i.e., does the decision apply retroactive? In this case, there is a strong argument that since the Supreme Court allowed such dues in a 1977, a retrospective remedy is not favored. Employers Council will be keeping up with and reporting new legal developments on this topic.