State Policy Network
Two years after Janus, workplace freedom fights remain in courts
Many workers have found themselves with no choice but to sue their union or employer in an effort to have their rights respected.

Susan Halloran has been fighting to leave her union since the day after she joined.

Halloran, a senior account clerk at Inver Hills Community College in Minnesota, was pulled from an employee training session by a union representative who rushed and pressured her into signing a dues authorization card. When she realized the dues were $700 a year—unaffordable with her costly cancer treatments—Halloran immediately reached out to the American Federation of State, County, and Municipal Employees (AFSCME) to rescind membership, but was told she must pay dues for a year before she could leave.

Halloran’s story is a common one.

“Unions have dug in”

Though the United States Supreme Court ruled two years ago this week that no public employees may be forced to pay a union as a condition of employment in the landmark Janus v. AFSCME case, many workers like Halloran have found themselves with no choice but to sue their union or employer in an effort to have their rights respected.

The Liberty Justice Center—which represented Mark Janus along with the National Right to Work Legal Defense Foundation—is now representing Halloran in court, along with workers in numerous other states suing for other violations of their Janus rights. Nonprofit legal centers, including The Buckeye Institute, Freedom Foundation, and Mackinac Center Legal Foundation, to name just a few, are litigating over 130 workplace freedom lawsuits across the country.

Network leaders and public employees rally in support of Mark Janus (center) and worker choice during Janus v. AFSCME oral arguments in 2018.

“In the two years since Janus decision, government unions have dug in, finding ways to hold onto members and money so they can continue hold on to political power,” said Diana Rickert, vice president of the Liberty Justice Center. “Government unions are forcing workers to sue to exercise their constitutional rights.”

While many members struggle to leave their union after joining, some workers have found themselves wondering why dues were ever taken from their paychecks to begin with. The Freedom Foundation has recently filed over a dozen forgery lawsuits—including five filed on a single day—on behalf of workers who never even joined the unions that are now taking their money.

“The union forged my signature and the state took my money based on nothing but the union’s word that I was a member,” said Maria Quezambra, a single mother in California who works as a homecare provider for her disabled daughter. Freedom Foundation is now representing Maria in court.

Maria Quezambra
Photo credit: Freedom Foundation

“Not only are these people not allowed to leave the union, but they are having dues deducted when they didn’t even join the union,” Freedom Foundation’s National Director Aaron Withe said.

While many post-Janus cases seek to defend workers existing rights, some focus on new groups of workers entirely. The Mackinac Center Legal Foundation is currently representing three United Airlines employees who are suing to have the same protections affirmed by Janus extended to quasi-government employees in the private sector.

“Should unionized transportation employees be afforded the same rights as their public sector counterparts?” Patrick Wright asked, describing the key question in Mackinac’s case against the International Association of Machinists and Aerospace Workers. Wright, vice president for legal affairs at the Mackinac Center Legal Foundation, described the case as “completely unique from other post-Janus cases nationwide.”

“Should this case find itself before [the Supreme Court of the United States], a decision to extend Janus rights to these employees would be groundbreaking,” he added.

“I’ve got a voice”

Though most organizations fighting for workers are litigating multiple, if not dozens, of cases in several states, each has one or two clients whose stories hold a special place in their memory.

At The Buckeye Institute, one of those clients is Jade Thompson, an Ohio teacher who has been a champion for worker rights for much of her teaching career. Thompson is one of several clients working with Buckeye to challenge the idea that a worker must accept representation by the union whether they are members or not.

Jade Thompson
Photo credit: The Buckeye Institute

“Compelling workers to speak through a union with which they disagree is out of line with Supreme Court precedent on First Amendment rights,” said Robert Alt, president and CEO of The Buckeye Institute. “Accordingly, mere hours after the Supreme Court issued its Janus decision, Buckeye filed the first of three federal lawsuits challenging exclusive representation as a violation of the First Amendment rights of non-members.”

Workers often comment on their surprise at learning they are one of countless workers left to fight their way out of a union.

“I thought I was alone,” Thompson said in a video interview with The Buckeye Institute. “This is wrong and my voice does count. You get braver. I feel more supported and I feel like I’m standing up for myself and my rights. I’ve got a voice and I want it to be heard.”

Withe noted that, though court cases often bear the name of only one litigant, they typically represent many more.

“These issues literally affect thousands, tens of thousands of people,” Withe said. “There are still thousands of people who’ve not had the opportunity to leave.”

Litigation: A necessary piece of workplace freedom

For each group, litigation is a key component of ensuring the Janus decision is respected and that workers truly have freedom in the workplace.

“While policy wins at the legislature or via executive action are critical for expanding workplace freedom, they can be more temporal or more easily undone as the political winds change,” Wright explained. “Marrying litigation with policy strategies allows us to leverage action by the courts, which could have broader and longer lasting impact.”

Alt explained that, though some existing laws across the country “clearly violate” the rights of workers, legislatures often leave it to the courts to fix. He described litigation as “necessary to ensure that mistreated individuals have a meaningful opportunity to vindicate their rights.”

Network think tanks and aligned litigation centers are currently representing clients in over half the states in both individual and class action suits. Among the litigants are a Maine professor, a group of Southern California lifeguards, two Alaska state employees, a University of Hawaii admissions officer, and an aqueduct and sewer plant operator in Puerto Rico.

Maine professor Jonathan Reisman
Photo credit: The Buckeye Institute

“Litigation is absolutely necessary to enforce the rights reaffirmed in Janus—not only for the government workers who step forward to participate in a lawsuit, but also to set precedents that are impactful for those who do not have the courage or knowledge of the decision,” Rickert said.

Even Mark Janus, whose name has become shorthand for workplace freedom over the past two years, continues to challenge government unions in court on behalf of himself and other workers who unfairly had dues deducted from their paycheck. His current case, brought by the Liberty Justice Center, seeks to return hundreds of millions of dollars to workers who had dues taken from their paychecks against their will.

“We can’t do what we do without litigation backing it all up,” Withe added. “It’s all well and good to run an opt-out campaign, but you need legal to back it up. It’s a necessity to be able to get people out of the unions.”

Categories: Policy Solutions
Organization: State Policy Network