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What Public Employers Need To Know A Year After Supreme Court’s Janus Decision

9.2.19

Until just last year, it was common for public sector collective bargaining agreements to require employees who elected not to belong to a union, but were still covered by the CBA, to pay “fair share” fees to the union as a condition of employment. The practice had been blessed by the U.S. Supreme Court in Abood v. Detroit Board of Education (1977), which reasoned that all employees within a bargaining unit benefit from union representation in negotiations. Therefore, it had been permissible for public employers to require payment of fees equivalent to union dues through an agreement in the CBA in exchange for that representation.

However, the Supreme Court dramatically reversed course in last year’s Janus v. AFSCME decision and found the practice unconstitutional. The Court found that this amounts to the government forcing individuals to subsidize private speech with which they may disagree – a violation of their First Amendment rights. The Supreme Court found that only when there is “clear and convincing evidence” of affirmative consent from a public employee may a public employer withdraw a fair share fee; otherwise the practice must be discontinued.

The Janus decision was a striking departure from the reasoning in Abood and the decision shocked unions around the United States. While seemingly a straightforward decision, public employers, public employees, and unions are still faced with challenges, frustrations, questions, and uncertainties in handling the practical implications of the decision one year later.  

Schools Caught Up In the Confusion

Educational institutions have not been immune from these challenges. For example, highlighting just one of the many issues left unresolved by the Supreme Court is the recent case filed by Kent State University employees who resigned from their union in direct response to the Janus decision. In Hannay v. AFSCME Ohio Council 8, the employees argue that the union dues authorization and check-off cards they signed years prior to the Janus decision are now unconstitutional because they prohibit resignation from the union and discontinuance of the payment of union dues to an unreasonably limited annual 15-day window. A similar case – Smith v. AFSCME, Ohio Council 8 – was settled earlier this year with the union agreeing, among other things, to stop enforcing policies restricting dues deduction revocations to a 15-day window. However, the issue is far from settled as evidenced by the ongoing litigation involving Kent State in the Hannay case.

Several other cases filed this year, including Crockett v. NEA-Alaska and Ogle v. Ohio Civil Service Employees Association, AFSCME, Local 11, have sought refunds for public employees, including school teachers, who paid fair share fees before the Janus decision. The courts in Crockett and Ogle have rejected the claims finding that public employers may rely on a “good faith defense” for actions taken prior to Janus. However, Crockett is on appeal, and Ogle, decided just weeks ago, may also be subject to further review.

Best Current Practices

Given that these and other lawsuits will continue to be filed regarding unresolved issues after Janus, what are some best practices for pubic educational employers right now? 


For more information, contact the authors at WBlackie@fisherphillips.com (440.838.8800) or LTompkins@fisherphillips.com (440.740.2136).

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