By Kaitlyn Dunphy, Esq.
In the wake of the U.S. Supreme Court’s Janus v. AFSCME decision in 2018, many lawsuits were filed against both public and private-sector unions, including against NEA, NJEA and their affiliates, seeking the return of dues deductions made prior to the Janus decision.
Some of these dues deductions were known as agency fees, which were collected from employees in a bargaining unit who chose not to join the association. Agency 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.
In Janus, the Supreme Court invalidated the longstanding practice of the collection of agency fees on First Amendment grounds. Plaintiffs in the ensuing legal challenges sought return of their agency fees and union dues going back many years. But unions, including our own, have been successful in fighting off these challenges at the highest levels in the federal court system.
NJEA has won a recent victory in one of these challenges before the federal Court of Appeals for the Third Circuit in a case called Fischer v. NJEA. The plaintiffs in Fischer had resigned their membership from NJEA after Janus was decided. NJEA accepted their resignations immediately and ceased collecting their dues on the closest of the following dates: either one of the two contractual dates set by the union dues agreement, Jan. 1 or July 1, or within the 30-day window set by the Workplace Democracy Enhancement Act (WDEA).
The Fischer plaintiffs argued that their First Amendment rights under Janus permit them to drop their dues obligations immediately and sued to challenge the constitutionality of the WDEA.
NJEA successfully defended this case at the trial court level and has now continued that success with a favorable decision from the Third Circuit court. In that decision, issued on Jan. 15, 2021, the court held that the plaintiffs lacked standing, meaning that they could not sue to challenge WDEA because their rights were not violated. Because NJEA accepted the earliest possible date for termination of dues—the window set by the WDEA—the WDEA actually helped the plaintiffs, the court held. Without the WDEA, the plaintiffs would have had to wait to until Jan. 1 or July 1 to stop paying dues.
More importantly, the court found that Janus did not give plaintiffs the right to terminate their dues obligations immediately. The plaintiffs were bound by the contractual obligations of the membership agreements they signed and had to abide by the two drop dates set forth in those agreements. Janus did not alter their contractual obligations. The case against the NJEA was dismissed.
The Fischer case is one of many similar cases filed nationally following the Janus decision. Nationwide, unions have been overwhelmingly successful in fending off post-Janus challenges to dues deductions.
In even more good news, the Supreme Court has recently denied hearing appeals in six similar cases, including lawsuits against the Ohio Education Association and the Illinois Education Association. The result is that the decisions in favor of the unions stand. Given these denials, while our opponents in Fischer may still seek to take their claims to the highest court in the land, it will be exceedingly difficult for them to convince the Supreme Court to hear their cause.
These successes give us great hope that even with the federal courts’ increasing number of Republican appointments to the bench, those judges and justices can put their partisanship aside and decide the cases before them fairly. It also confirms our strongly held belief that the collection of agency fees prior to Janus complied with the law in effect at the time, and rightfully collected those fees to support our unions’ work.
Kaitlyn Dunphy is an associate director of NJEA Legal Services and Member Rights in the NJEA Executive Office. She can be reached at kdunphy@njea.org.