Last month the Supreme Court held in Janus v. AFSCME that it is unconstitutional for the states to require public employees to pay labor unions if they choose not to become members (these payments were called “agency fees”). There has been plenty written about what this means for the future of public sector unions and what might happen next. But it turns out that there is another important question: what about the agency fees that unions had been collecting before Janus? Are unions liable for collecting them? Can they be forced to pay them back?
A series of lawsuits have been recently brought in seven states arguing that unions are liable, and now subject to quite significant liability. Noam Scheiber has a story in the New York Times about the suits, (and the lawyer bringing the suits, a former law professor and former Texas solicitor general, Jonathan Mitchell):