Wednesday, November 13, 2019

Janus Decision Does Not Require Union to Pay Back Fees

Let’s call it Janus – 1; AFSCME – 1 in the battle over agency fees.

Last week the 7th Circuit Court of Appeals affirmed the district court’s grant of summary judgment in Mark Janus’ lawsuit seeking repayment of agency fees withheld from his wages and paid to AFSCME prior to the Supreme Court’s landmark ruling last year overturning its prior rulings that agency fees (fair share) collected from public employees by unions was not unconstitutional. As readers recall, Janus challenged that status quo, successfully arguing to the Supreme Court that requiring him and other public employees to pay agency fees despite their choice against union membership violated their 1st Amendment rights because it, in effect, controlled their speech by making them subsidize political and other public efforts by the union on positions that were contrary to their personal convictions.

Having achieved relief from the Court from being forced to pay agency fees, Janus went back for a second bite of the apple, asking for repayment of all agency fees previously paid to AFSCME. He included CMS (the state-wide administrative agency) as the collector of those fees from his pay. His theory was that the Supreme Court’s decision that mandatory public employee agency fees were unconstitutional had retroactive application and as such, to deprive him of a refund of that money was an unlawful deprivation “under color of law.”

The 7th Circuit ultimately skirted the issue of whether Janus applied retroactively but did hold that AFSCME had relied in good faith on existing law, including the Supreme Court decision that was ultimately overturned as well as the state statute. Further, the court disagreed with Janus’ argument that by allowing the union to keep the fees collected from his and other non-members, they experienced a “windfall”, noting that despite the fact that Janus and others may not have wanted union representation, the union did perform the work for which it was paid in part by agency fees.

The 7th Circuit joins a number of other federal circuits who have held similarly. It remains to be seen whether Janus will seek review of this decision by the Supreme Court.