On July 2, 2018, five days after the Supreme Court announced its ruling in Janus v. American Federation of State, County, and Municipal Employees, Council 31, a class action lawsuit was filed in federal court in Orange County, seeking injunctive relief, monetary damages, and attorney fees based on the past collection of “agency fees.” Nine school and community college districts are named as defendants, along with local, state and federal employee organizations (including, for example, AFT, NEA, CTA, and CFT) and individual administrators in their official capacity as the “executive officer[s] who implement the deduction of fair share service fees” from employees’ paychecks. The named plaintiffs are seven instructors who work for school districts or community colleges; they filed the lawsuit on behalf of “all others similarly situated.”
We anticipated this type of action in the wake of the Janus decision, which declared agency fees unconstitutional in violation of the First Amendment. The lawsuit asks the federal district court to:
- Certify a “class and subclasses” of individuals who have not joined their employers’ unions but have paid “fair share fees” to which they have not consented.
- Order the districts and superintendents to stop deducting agency fees from the paychecks of employees who are not members of the union. (Districts are already doing this as a result of the Janus decision.)
- Order the unions to “disgorge and refund all fair share service fees or agency fees unlawfully withheld or collected (directly or indirectly) from Plaintiffs and the class members, along with pre-judgment and post-judgment interest.” This second remedy assumes that Janus confirmed agency fees were illegal all along, thus entitling class members to a refund for fees paid as far back as the statute of limitations allows. (This remedy is sought only from the unions, which ultimately received the money deducted from past paychecks.)
- Award unspecified “damages” and attorney fees and costs. The damages presumably are sought in compensation for past violations of the First Amendment. Attorney fees and costs are available under federal law (42 U.S.C. § 1988) to parties who prevail in litigation claiming violation of constitutional rights.
The lawsuit names school and community college districts as defendants, based only on their compliance with agency fee provisions of the EERA that were invalidated by Janus. We need hardly point out the irony that if the districts had not complied with these EERA provisions before the Court’s Janus decision, they would have certainly been the target of litigation by unions. This lawsuit is likely only the earliest example of post-Janus litigation that will place school and community college districts in the legal crossfire between unions and their detractors as they battle over the implementation of Janus.
Districts facing claims like these have potential protections from liability, such as possible immunities from suit, and defense and indemnification provisions in collective bargaining agreements. If your agency is served with this or a similar lawsuit, an important first step is to notify your insurance carrier for a coverage determination.
Our firm is ready to assist and defend our clients in this type of legal action. AALRR’s attorneys have significant experience defending school districts, colleges, and officials in federal court, including class action lawsuits. We will continue to publish timely alerts as the public sector deals with aftershocks from the Janus decision.