The landmark Supreme Court decision in Janus has now precipitated the filing of two new class actions, right here in Central Ohio. Last week, public employees working at different public agencies, filed two class actions challenging not only the agency fees they have paid in the past, but also union dues they attempted to halt after the Janus decision issued.
As a quick recap, Janus held that public sector employees cannot be forced to pay mandatory agency fees to a public sector union if they are not a member of the union. In the Court’s words: “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collection such a payment, unless the employee affirmatively consents to pay.” The Court reasoned that requiring payment of such fees is akin to forcing employees to subsidize the speech of public sector unions, in violation of their First Amendment free speech rights.
One of the two class actions, Ogle v. Ohio Civil Service Employees Association, AFSCME, Local 11, involves a class of agency-fee payers. The plaintiff, an employee of the Ohio Department of Taxation, brings class action claims on behalf of all public employees represented by the Ohio Civil Service Employee Association, an AFSCME Local in Ohio. The lawsuit seeks to have Ohio’s agency fee law declared unconstitutional in light of the Janus decision, along with obtaining back payments from the OCSEA for agency fees it has impermissibly taken from employees.
The significance of Ogle, however, is that it seeks not just to obtain repayment for all agency fees dating back to the decision in Janus this year, but potentially all the way back to 2012, when the Supreme Court issued a decision in Knox v. SEIU Local 1000, which began to outline the First Amendment case law that lead to the Janus decision. If plaintiffs are successful in forming a class, and obtaining payment for all agency fees taken dating back to 2012, the financial loss to public sector unions would likely be quite substantial.
The other case, Smith v. AFSCME, Ohio Council 8, involves employees of two agencies in different Ohio counties as well as an employee of a metropark, all public employers in Ohio. Unlike Ogle, these employees allege that they were members of the union paying union dues, but then notified the union that they were resigning and did not consent to further deduction of dues from their pay. Allegedly, the union denied the employees’ request, citing a provision in the documents the employees signed upon becoming members that establishes a “window period” during which membership may be rescinded.
In this case, the union allegedly had a practice of restricting employees to only being able to withdraw their union membership in the 15 days prior to the expiration of the current collective bargaining agreement. Further, the union also allegedly informs members that after they provide notice of withdrawal from the union, their withdrawal will not be processed for “at least” 30 days, which allegedly has resulted in collection of further dues and fees during that 30-day period after employees have announced they no longer want to be in the union.
Smith is significant, therefore, because it will be the first step to resolving the question of whether an employee who at one time joined a public sector union can rescind that agreement, and the dues obligation that comes with it. Whether the circumstances under which the employee joined are relevant may also be decided. Indeed, plaintiffs in Smith alleged that they only joined because they would have had to pay agency fees if they did not. As discussed in my original post on Janus, this could be particularly significant because many unions, in anticipation of Janus, undertook significant efforts to get agency fee payers to join the union.