On August 27th, 2019, five employees represented by the National Right to Work Group filed a class action lawsuit against the Ohio Civil Service Employees Association (“OSCEA”) AFSCME, Local 11, Governor Mike DeWine, and Mathew Damschroder, the director of the Ohio Department of Administrative Services. The complaint alleges that the plaintiffs’ First Amendment rights have been violated by being required to pay union dues. This appears to be the first post-Janus lawsuit filed concerning dues deductions in Ohio.
Plaintiffs’ filing in the U.S. District Court for the Southern District of Ohio claims that the state policy of prohibiting employees from withdrawing from the Union and opting out of Union dues, unless within the specified “escape period” once every three years, is in violation of the U.S. Supreme Court’s recent decision in Janus v. AFSCME. In Janus, the Supreme Court found mandatory union fees to be a violation of a government employee’s First Amendment rights not to endorse the union’s speech, unless the individual waives such rights. Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2486 (2018). Janus requires the authorization to deduct union dues to be voluntary.
According to the complaint, the brief “escape period” to opt out of union membership and dues violates the plaintiffs’ First Amendment Rights. Plaintiffs allege the Defendants have deducted and collected union dues from employees “without clear and compelling evidence that they have waived their First Amendment rights.”
Various District Courts around the country have ruled differently on “escape periods.” It is hard to predict how the Southern District will rule on this issue. Either way, the decision will be significant for public employers, public sector unions and employees.
Fishel Downey will continue to monitor this and other cases and report back as they proceed through the courts.