The changes foretold when the Janus decision on union dues collected from non-members first came down are already underway. Ed highlighted the public unions’ concerns over lost future revenue as membership contracts and their ability to forcibly extract payments from workers evaporate. But what about all of the past payments they took in from non-members who were already objecting? Some of them are going to be wanting their money back and the ball has just begun rolling in Washington state. A new lawsuit on behalf of home caregivers who were being charged union fees seeks to have the money previously fleeced from their paychecks returned. (US News)
An Olympia-based think tank is suing to force Washington state and a union for home-care workers to reimburse those workers for union dues or fees they didn’t want to pay.
The Freedom Foundation filed the lawsuit Tuesday in U.S. District Court in Tacoma. It seeks class-action status on behalf of hundreds or thousands of in-home care providers for elderly or disabled clients covered by Medicaid in the past four years.
The lawsuit says the state automatically collects 3.2 percent of the workers’ pay and turns it over to the union, SEIU 775.
Workers can choose to opt out, but the organization says the state has failed to honor some of those requests.
There are a couple of wrinkles to this story which are worth watching, particularly because they have the potential to either further expand the limits of the decision in Janus or to set some boundaries which the unions can rely on to staunch the bleeding a bit. The first is the question of whether or not home health care aides are properly considered “full public employees.” They’re in sort of a gray area in that regard, but they definitely receive payments funded at least in part (or indirectly) by taxpayer dollars and they’re being “represented” (even if it’s against their will) by the SEIU, which handles public employees. Trying to turn around now and argue that they don’t qualify sounds like a losing proposition in court.
Along the same lines, the suit will seek to further clarify the question of proactive consent to have dues withheld. The home health care workers in the Washington case already had the choice to opt out of having the dues withheld, but they needed to fill out forms and specifically ask to have the deductions ended. According to Janus, that’s not good enough. The unions aren’t supposed to be able to collect the dues unless the worker specifically opts in, giving the union permission to take their money.
On top of that, the suit claims that the employers in this case sometimes failed to honor the workers’ requests to opt out and collected the money anyway. In cases where the request was ignored this should be an easy call. But if proactive consent wasn’t clarified until the Janus decision, can the workers get the money back from years prior to the ruling? This isn’t a situation like a new law making something illegal which was previously not regulated. If the lack of a proactive consent requirement is unconstitutional now then it was unconstitutional in the past.
That leads us to the bigger issue here and the one which is currently giving union leaders nightmares. Can workers across the country sue to have fees collected prior to the Janus decision returned to them? If so, rather than just worrying about falling revenue in the years to come, the unions could see their coffers emptied pretty quickly. And that means that the DNC is going to see a lot of their funding drying up much faster than anticipated since most unions exist primarily to act as funding arms for the Democratic Party.
Interesting times indeed.