On February 1st, 2021

United States Supreme Court Declines to Hear Janus Retroactivity Appeals (Janus II)

Appellate Court Decisions in Favor of Unions Permitted to Stand

WASHINGTON D.C. – On January 25, 2021, the United States Supreme Court (SCOTUS) refused to hear a number of cases filed throughout the country by conservative anti-union organizations that were looking  to further build on the 2018 SCOTUS Janus decision by seeking reimbursement of “fair share” fees for those who paid them, for up to three years prior to June 2018.

“This was another attempt by those who would like to destroy unions that represent, for the most part, the working middle class,” said California Statewide Law Enforcement Association (CSLEA) President Alan Barcelona.  “By declining to hear those cases, the United States Supreme Court lets stand the decisions already handed down by the Appellate Court which stated labor unions acted appropriately, relying on existing case law prior to the Janus decision.”

The Janus Decision:  In June 2018, the United States Supreme Court rejected more than four decades of legal precedent which permitted labor unions to charge non-members the fair share costs of negotiating and enforcing memorandums of understanding (contracts).  As a result of the Janus decision, employees in Bargaining Units have the option of being a full union member or being a non-member who pays nothing while receiving the benefits of collective bargaining.

Janus II:  Not satisfied with a prospective application of the Janus decision, conservative anti-union organizations went back to court in an effort to apply the Janus decision retroactively and seek reimbursement for the payment of fair share fees up to three years prior to Janus.

Fortunately for organized labor the vast majority of these cases have been unsuccessful with court decisions ruling that labor unions relied on existing case law prior to Janus which permitted them to charge fair share fees.  Two of these appellate court decisions, one which included the same lead plaintiff as in the original Janus decision, sought to have SCOTUS review whether fair share fees should be recoverable retroactively.

Re-Cap: On January 25, 2021, SCOTUS denied taking up the cases thereby leaving the appellate decisions intact which ruled the good faith defense was a bar to retroactive recovery of fair share fees.  The decision to not review these appellate cases does not mean that SCOTUS is prevented from taking up a different appellate court decision should it choose to do so.

Conclusion: There was no rationale provided by SCOTUS when it denied review.  However, if SCOTUS felt compelled to address the issue of retroactivity, there is no reason why these appellate decisions were not appropriate for such review.

Given the significant financial impact that the prospective application of Janus has had on organized labor, a retroactive application would have had devastating effects.

"It is our hope that non-union members will give serious thought as to the enhancement and protection of pay and benefits like retirement that unions have provided" said CSLEA President Alan Barcelona.  "Even if someone does not believe they will need to access benefits like legal defense, discipline representation or insurances, it is only fair for all employees in the bargaining unit to help shoulder the costs of obtaining and maintaining negotiated benefits. I hope more people will recognize and appreciate the important work unions have done for decades and continue to do. It’s vital work worth supporting."


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