In the wake of the Supreme Court’s decision in Janus v AFSCME, many public sector unions have erected barriers that make it more difficult for public workers to stop dues payments. One such barrier is an “escape period,” a window of time outside of which a person is forced to continue subsidizing union speech.
In its Janus decision, the Supreme Court said that dues payments cannot be taken from public workers “unless the employee affirmatively consents to pay” as demonstrated by “clear and compelling evidence.” Someone actively attempting to stop dues payments outside of an escape period is clearly not showing affirmative consent.
As National Right to Work President Mark Mix and Janus attorney Bill Messenger wrote in a Wall Street Journal Op-Ed, “the federal government and many states and localities continue to deduct union dues without evidence that workers waived their speech rights, usually based on pre-Janus authorization forms that come nowhere close to demonstrating a waiver.”
Many workers consented to dues payments before Janus, not knowing that they had the right to leave the union. Mix and Messenger argue this does not meet the standard for a waiver of rights set by the court in its decision. Public employees should be able to exercise their rights under Janus year-round.
The Foundation has been involved in dozens of escape period cases across the country, defending teachers in California, prison guards in Pennsylvania, police officers in Nevada, and many more.
For example, in Allen v. Ohio Civil Service Employees Association, the foundation represented a group of state employees who wanted to withdraw their support of the OCSEA union. The OCSEA had a “Maintenance of Membership” provision in its monopoly bargaining agreement that only allowed dues payments to be revoked “during a thirty day period commencing sixty days prior to the expiration date of th[e] Agreement.”
In that case, OCSEA union officials ultimately settled by eliminating the union’s escape period restriction and promising to pay back dues collected from more than 150 state employees who had been blocked from exercising their rights under Janus.
Four other class action lawsuits have reached similar settlements that include the elimination of escape periods. Another class action case on behalf of New Jersey schoolteachers went to trial and was heard by the United States Court of Appeals for the Third Circuit.
Teachers Susan Fischer and Jeanette Speck argued that the escape period rule created by the state of New Jersey is unconstitutional under Janus, and that the dues taken without their consent should be returned. The teachers were represented by staff attorney William Messenger, who also argued the Janus case. A decision in that case is pending.
Enforcing Janus Media Hits:
Mark Mix and William Messenger’s Wall Street Journal Op-Ed
Janus Enforcement News Releases:
