Since the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME, public-sector unions, including NJEA and other NEA affiliates, have faced several legal challenges seeking the return of agency fees paid prior to the Janus decision. Agency fees were collected from employees in a bargaining unit who chose not to join the association. Those fees covered the costs of collective bargaining, contract enforcement and other services from which the nonunion employees benefited even though they did not join the union. The Janus decision prohibited public-sector unions from collecting these fees.

So far, unions have been successful across the board in defending against these claims, relying on a good faith defense—that in collecting agency fees, they relied on the state of the law at the time, which permitted the collection of such fees at the time they were collected.

Though many applications to hear this issue have been filed with the Supreme Court of the United States, none have been granted by the court at the time of this writing. Most recently, in October 2020, the court declined to take the case of Reisman v. Associated Faculties of University of Maine, which addressed the constitutionality of the exclusive representation principle.

There are a series of related cases that address whether agency fee payers are entitled to a refund of unions dues they paid before the Supreme Court decided Janus v. AFSCME. The court is considering whether it will grant applications to hear these appeals.

There are two related cases in New Jersey, Smith v. NJEA et al. and Fischer v. Township of Ocean EA et al., in which the court found that the union dues authorizations signed by the plaintiffs in that case were valid and enforceable contracts. The court also found that NJEA and the local affiliates named as defendants in the case collected representation fees from fee payers in good-faith reliance on the law in effect at the time and declined to award plaintiffs return of their agency fees collected prior to the Janus decision.

Those cases are on appeal to the Third Circuit Court of Appeals. A decision is expected in the coming months.

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