There have been some changes in the two recent Ohio cases applying the U.S. Supreme Court’s ruling in Janus v. AFSCME. In the first case, Smith v. AFSCME Council 8, Case No. 2:18-CV-1226, the parties settled after the union agreed to refund all union dues collected after the employees notified union officials that they no longer consented to financially supporting the union post-Janus. More importantly, the union also agreed not to enforce its policy that requires employees wishing to change their dues deductions to do so within a 15-day window before the new collective bargaining agreement takes effect. The union also agreed to identify any other workers who were prevented from revoking their dues deduction authorization because of the “window period” policy and refund any dues collected under the policy. This is the first class action lawsuit in the U.S. since the Janus decision in which a union has agreed to end the use of a “window period” policy.

In Ogle v. Ohio Civil Service Employees Association, AFSCME, Local 11, Case No. 2:18-CV-1227, the union filed a Motion to Dismiss arguing that it complied with the Supreme Court’s decision in Janus since it was issued, so Ogle has no standing to sue. The union maintains that it previously took the fees in good faith under the prior law that permitted such fees, and that private parties should be able to safely rely on existing laws in ordering their affairs. Ogle defends his standing to sue based on the fact that the Ohio legislature has not removed O.R.C. § 4117.09(C) (the statute that permits fair share fees), despite the fact that the fees were deemed unconstitutional by Janus. He believes there is a credible threat that the unconstitutional law will be enforced against him, and, therefore, he wants the court to declare the statute unconstitutional and permanently enjoin the union from enforcing it. Ogle also argues that the union cannot raise a good faith defense against liability for charging fees prior to Janus. He believes he is entitled to discovery concerning whether officials knew or should have known taking agency fees was legally suspect and possibly a violation of the employees’ First Amendment rights, yet chose to continue taking the fees. The judge has yet to rule on the Motion to Dismiss.