The Legal Battle to Enforce Janus v. AFSCME

Listen & Download

In June 2018, the Supreme Court in Janus v. AFSCME held it unconstitutional under the First Amendment for the government to compel public employees to pay union dues or fees without their prior consent. This triggered a wave of litigation to enforce the seminal decision and eliminate state and union resistance to it. Among other things, there are cases pending that seek to recover union fees unlawfully seized from employees in the past, as well as cases that seek to strike down restrictions on when employees can exercise their Janus rights in the future. These and other cases, and the issues at stake in post-Janus litigation, will be surveyed by the attorney who briefed and argued Janus in the Supreme Court.


William L. Messenger, Staff Attorney, National Right to Work Legal Defense Foundation


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.


Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Labor & Employment Law Practice Group, was recorded on Friday, November 9, 2018, during a live teleforum conference call held exclusively for Federalist Society members.          


Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is "The Legal Battle to Enforce Janus v. AFSCME." My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.


As always, please note that all expressions of opinion are those of the expert on today's call.


Today we are fortunate to have with us Bill Messenger, who is a Staff Attorney at the National Right to Work Legal Defense Foundation. After our speaker gives his remarks, we will then go to audience Q&A. Thank you for sharing with us today. Bill, the floor is yours.


William Messenger:  Thank you. And thank you for The Federalist Society for hosting this teleforum. The topic today will be the litigation battle following the Supreme Court's decision in Janus v. AFSCME. And the bottom line is there's a lot of litigation going on right now. On my count, there's 49 cases currently pending in the federal courts or state courts that concern Janus-related issues, stretching from whether Janus can be enforced retroactively to enforcing Janus rights moving into the future.


But before discussing what litigation comes after Janus, I think first we should discuss exactly what the Supreme Court held in that case and to provide a little bit of background. My guess is that most of you on this call are probably already familiar with what Janus held, but for everyone else, just to make sure that everyone's on the same page -- and so what the Supreme Court held in Janus is that it's unconstitutional under the First Amendment for the government to compel public employees to pay union dues against their will. Or in other words, the Supreme Court struck down what is known as the union shop or the agency shop, which is a requirement that public employees, as a condition of their employment, join or support a union.


Now, union shop or agency shops in the public sector came about in the 1960s, right around that point, and sort of proliferated after that point. And those agency fee requirements sort of raised profound First Amendment issues right from the very beginning because what you have is the government conditioning employment on an individual subsidizing the speech of a special interest group, a union, for the purpose of petitioning or representing their interests before the government. In many ways, these agency fee requirements were analogous to political patronage requirements, which is the old past practice of the government requiring, to have a government job, that the individual support the Democratic Party or the Republican Party. It's just in terms of agency fees, instead of being forced to support a political party, the individual is forced to support a special interest group closely aligned with a political party.


Now, in 1976, the Supreme Court held political patronage requirements to be unconstitutional under the First Amendment. But then one year after, in Abood v. Detroit Board of Education, the Court reached a contrary decision with respect to compulsory agency fees. And in the case of Abood—which again, 1977—the Court held that it was unconstitutional under the First Amendment to compel public employees to pay for so-called political expenses, but not unconstitutional to force those employees to pay for the union's costs of collectively bargaining with the government. So a great deal of compulsory fees were permitted.


Now, the dissent in that case, rather presciently, said there's no difference between the two, that collectively bargaining with the government is political, and is political speech, and therefore, it should be just as unconstitutional to compel public employees to support that collective bargaining. But nevertheless, the Abood framework, which allowed, again, some compulsory fees in the public sector, is what controlled in this country from 1977 until the Supreme Court's decision in June of 2018 in Janus. There's a great deal of litigation between those points that ultimately culminated in Janus, but the story of that litigation, I think, is a story for another day of how Janus eventually came about.


But the bottom line holding in Janus was that the Court overruled Abood and held it unconstitutional across the board for the government to compel public employees to subsidize a union. And as part of Janus, the Court held three things in addition to its holding, or to clarify its holding, which are very important for litigation that has followed. The first is the Court held that a public sector union cannot take an employee's money without their prior affirmative consent. And this was important because prior to Janus, the unions took the position that they could take an employee's money unless and until that individual objected. And then the unions would put a lot of procedural hurdles in front of that individual to make it difficult for that individual to object. So for example, in California, the California Teachers Association would require that an individual object each and every single year to paying union dues, or the union would take political expenses from them. And then the individual would have to do it again the next year, and the next year. But Janus ended that by making clear that a union cannot take an employee's money without their prior affirmative consent.


The second thing the Court held is that prior consent has to amount to a waiver of First Amendment rights, and so the Court put a standard on what that consent has to look like. And a waiver of First Amendment rights has to be knowingly made, clearly made, and voluntarily made. So in order for a union to take an individual's money, or have the government take it, the union has to show that the individual's consent amounts to a First Amendment waiver, and that will play very heavily into the litigation that's come after that.


And then, finally, the Supreme Court indicated that exclusive representation of employees in and of itself infringes on First Amendment associational rights. Court noted that exclusive representation is an impingement on associational rights that wouldn't be tolerated in other contexts. And the thought is is that that language may suggest that the Court may be willing to look at exclusive representation, which will be one of the topics we talk about today. So that's the Court's holding in Janus.


So now, moving to the cases following Janus, which, again, I count them to be about 49, and I sort of put them into three different categories. One are retroactive cases, which I call clawback cases, that seek to obtain relief for employees for violations of their rights prior to the Janus decision in June of this year. The second group of cases are prospective cases that seek to enforce employee's rights under Janus moving forward in the future and to eliminate union obstacles to enforcing those rights. And then the final category of cases are cases to extend Janus into other areas, mainly dealing with private sector employment or exclusive representation. And so what I'd like to do is go through each of those categories, talk about the cases in those categories and the major issues, and then open it up to questions about any of those different groups of cases.


So we'll start with retroactive, and these are the clawback cases. And what these cases seek is that the unions return agency fees taken from employees prior to the Supreme Court's decision in Janus. By my count, there are 34 such cases already on the books right now, most of which are filed as class actions seeking a return of money that the unions wrongfully took in the past. Now, retroactivity is actually not an issue here, or a problem, rather, with these cases. Supreme Court constitutional decisions are retroactive because when the Supreme Court says what the First Amendment means, the First Amendment has always meant that. The Court is not inventing something new.


But nevertheless, there are two issues that are going to be in most of these cases that will probably decide the outcome of these various clawback cases, the first of which is class certification. Unless a case is certified as a class action, the amount of money at issue in each case is not very significant. There's not necessarily one particular issue that's an impediment to class certification in these cases, but obviously the unions will come up with anything they can to say there's a class conflict or some other reason the case shouldn't be certified as a class. So expect a lot of litigation over whether or not these cases can, in fact, be certified.


The lead case on class certification, I would say, is probably the Seventh Circuit case, or a case in the Seventh Circuit called Riffey v. Rauner. It's a foundation case. It's actually Harris v. Quinn, which was a Supreme Court decision from 2014 that held it unconstitutional for unions to seize money from Medicaid providers. After that case was decided, it went back to the District Court for mainly the determination of whether it would be a class action. The District Court denied class certification. The Seventh Circuit upheld that, but then the Supreme Court reversed it in a case following Janus and remanded the decision back to the Seventh Circuit to reconsider its decision in light of Janus. So that case right now is sitting at the Seventh Circuit, and we're awaiting an opinion on whether it thinks that class certification is appropriate in light of the Court's decision in Janus.


The second issue in the clawback cases, and this will probably be the big one that really determines the failure or success of most of them, is the so-called good faith defense. The unions are arguing in all of these cases, every clawback case, that if they had a good faith belief that their fee seizures were constitutional at the time, that immunizes them from liability under Section 1983 for paying damages for taking those fees. So basically, they're raising what's often called a good faith defense. Now, the counterargument is that there is no such thing as a good faith defense to Section 1983 liability. Mistake of law has never been a cognizable defense. And in cases that did recognize so-called good faith defense in the past, it was because there was an element of the particular constitutional claim at issue. And the courts did not hold that there is a good faith defense to all claims, much less to a First Amendment claim.


And then the backup argument is even if there was a good faith defense, the unions didn't act in good faith because as Supreme Court noted in Janus, the unions have been on notice for years that their fee seizures were very likely unconstitutional, at least since the Court's 2012 decision in Knox where the Court called Abood an anomaly, or 2014 in Harris where the Court basically gave six reasons why Abood should be overruled, that the unions were on notice that they were treading on thin ice by taking these fees. So that's the good faith defense issue. I expect it to be litigated throughout the circuits, and I wouldn't be surprised if the Supreme Court ultimately took up the issue, and not only because of its importance in this litigation, but its actually even bigger significance outside of just post-Janus litigation.


If the courts were correct, or if the union was correct, that there is a good faith defense, that means there is a good faith defense to all 1983 claims, from racial discrimination claims, to statutory claims, anything that could be brought under 1983, state of mind mistake of law would become a defense to that. And the Court has come close to looking at this issue several times in the past, so I wouldn't be surprised if, in one of these cases, the Court ultimately took it and resolved once and for all whether or not private defendants do have a good faith defense to Section 1983 liability for the depravation of constitutional rights they inflict. So those are the clawback cases, the retroactive cases.

The second category are prospective cases that seek to enforce employee's rights under Janus moving forward. And the vast majority of those are cases challenging employee's ability, or when employees can exercise their rights under Janus in the future, and when they can stop the deduction of union dues. Now, as I noted before, the Supreme Court held in Janus that the union cannot take an employee's money without their consent, so any employee who didn't consent prior to Janus, basically, the unions have stopped taking money from those individuals almost across the board just because it's very cut and dried. They can't do it. But that leaves the issue of what about individuals who were union members or who authorized dues deduction prior to Janus? The unions, in many states, but also with state assistance, are trying to limit the ability of current union members to stop the deduction of union dues from their paychecks and exercise their Janus rights.

So by way of example, New Jersey has passed a law that said any public employee who signed a dues deduction authorization in the past can only revoke it during one 10-day period per year. Or in other words, New Jersey's saying you can only exercise your Janus rights -- you can't exercise your Janus rights during 355 days of every year, but only during 10 days a year if you authorized dues deduction in the past. Delaware passed a similar law, but with a 15-day period.

You're also seeing similar restrictions being put in dues deduction authorizations. So for example, there's a case we currently have in Ohio called Smith that's dealing with a restriction that AFSCME has that says individuals who have agreed to dues check-off, or who agree to have dues deducted from their paychecks, only can revoke it during one 15-day period per collective bargaining agreement. Now, a collective bargaining agreement is usually three years long, so basically, AFSCME is taking the position that anyone who authorized dues deduction in the past could only exercise their Janus rights during one 15-day period about every 1000 days. So you're seeing significant restrictions on the ability of individual employees to get out.

And as you can imagine, there's a number of cases challenging this. I count 19 cases right now that currently have at least one allegation in them challenging these type of revocation windows. And I think probably the primary issue in a lot of these cases is going to the issue of waiver. As I mentioned before, the Supreme Court said consent has to amount to a First Amendment waiver. And what the unions are going to argue in most of these revocation cases that deal with individuals who signed dues deduction authorizations is the individual agreed to this restriction. They waived their right to basically get out of the union and stop the dues deduction in the future. If they make that argument, then they should have to prove that dues deduction agreement amounts to a waiver of First Amendment rights in that it's knowing, it's clear, and it was voluntarily made. So the litigation will very much hinge on that.

And one sort of twist on that is that the analysis is slightly different with individuals who signed cards prior to Janus because in that case, as I noted, a waiver has to be knowingly made. The argument can be made that an individual could not have knowingly waived their rights under Janus before Janus was decided, and that, therefore, any restriction agreed to or dues deduction agreement agreed to prior to Janus is null and void because it couldn't be a knowing waiver of their Janus rights before Janus was decided. So that issue will be litigated in the courts.

Now, a slight subset of the revocation cases is waiver cases that basically use that waiver argument more offensively, the argument being that dues deduction agreements signed prior to Janus are just null and void completely because they don't amount to a First Amendment waiver, and therefore, states and other public employers shouldn't deduct any union dues or fees from anyone who signed a card prior to Janus because that card can't be considered a valid First Amendment waiver. I count at least two cases that have that kind of waiver claim in them that are currently pending, and that's also an issue we'll see of which of these dues deduction agreements, if any, amount to a First Amendment waiver, which in turn will control the degree to which unions and states can restrict individuals' ability to get out of a union and stop the deduction of union dues from their paychecks, as is their right under Janus. So that's the prospective litigation, mainly, as I said, dealing with an individual's ability to exercise their Janus rights prospectively.

Turning to the third category, it's extending Janus beyond the Court's decision today. And that's really in two areas, the first of which is to the private sector. Janus dealt with a public sector employee, Mark Janus, and it explicitly applies to all public sector employees. However, with respect to private sector employees, the Court expressly reserved the question and said, "We don't decide private sector employees today," and then noted in a footnote that private sector employment brings up additional issues. The main issue is state action. Is there state action sufficient to trigger First Amendment in the private sector, mainly meaning under the National Labor Relations Act and under the Railway Labor Act?

And the Court noted there's a circuit split on that issue of state action under, at least, the National Labor Relations Act. Under the Railway Labor Act, there's not really a circuit split because the Supreme Court in Hanson and later in Ellis, found state action under the Railway Labor Act. So I wouldn't be surprised to see cases in the future dealing with constitutionality of compulsory fees under either the NLRA or the RLA. Right now, there are no cases on that, to my knowledge. There was one in the past brought by the Right to Work Foundation called Serna, but unfortunately, it came too soon and reached the Supreme Court when it was deadlocked 4-4 after Justice Scalia's death. So as of now, there is no litigation on this topic. But again, I wouldn't be surprised if we see it in the future.

And then the final one, to extend Janus as to exclusive representation of individuals. So exclusive representation is where the government forces an individual to accept a union as their representative or agent for dealing with the government. And of course, in Janus, the Court said you can't be forced to subsidize that exclusive representative. But that brings up the next question is, well, if you can't be forced to subsidize this mandatory agent, why can you be forced to accept it at all? Why can you be forced to accept an organization to speak on your behalf if you don't want it to speak on your behalf?

And there's a number of cases challenging the constitutionality of exclusive representation. There's a total of nine, to my count, but they're sort of in different categories. The first group was actually filed prior to Janus but after Harris v. Quinn. And it challenges exclusive representation of individuals who are not public employees, but who are independent Medicaid providers. More specifically, by around 2000 or so, several states came up with the idea of imposing mandatory union representation on individuals who weren't public employees but just received some public money for their services, mainly Medicaid providers who provide home-based services to people with disabilities and child care providers who serve children who are on public aid programs. And the states Illinois, California, Washington, and a few others forced these individuals to accept a mandatory representative to bargain with the state over its Medicaid or childcare program, effectively a mandatory lobbyist.

And so after Harris v. Quinn held it was unconstitutional to force these individuals to pay dues, cases were brought, mainly by the Right to Work Foundation, challenging the constitutionality of extending exclusive representation beyond employees to individuals who are not government employees. There are several that were out there. Some, unfortunately, hit the Supreme Court when it was deadlocked 4-4. But now there's several others behind them, one of which is called Bierman v. Dayton, and the petition for certiorari in that case will be filed in mid-December. It'll present to the Court whether it's constitutional to extend exclusive representation to non-employee providers.

And then there's a second group of cases, the other seven, that deal with exclusive representation of public employees, many of which were brought by Buckeye, and those challenge public sector unionization. Can you extend exclusive representation to employees? And there's a signal, at least in Janus, we believe, that the Court may be ready to look at this. The Court held no less than three times that exclusive representation itself impinges on associational rights, and that also noted that it's a significant impingement on associational rights that, quote, "would not be tolerated in other contexts." So the hope in Bierman is that that other context they're referring to means these independent Medicaid providers. But I guess we'll all find out soon enough exactly what, if anything, the Court meant about that.

So those are sort of the three main categories of litigation we're seeing post-Janus; retroactive cases to clawback money taken in violation of Janus prior to the decision, prospective revocation window cases seeking to strike down restrictions on when employees can exercise their Janus rights, and then, finally, cases to extend Janus to private sector compulsory fees and to exclusive representation.

So that's all I have in terms of opening remarks and sort of my view of what the world looks like out there post-Janus. And with that, open the floor for questions.

Micah Wallen:  Wonderful. Thank you so much. I'm not seeing any questions line up automatically. Did you want to delve any further into some of these issues, Bill, while we're waiting for a question?

William Messenger:  Which one interests you?

Micah Wallen:  What are the prospects in each of these areas? Are some much more likely to succeed than others? Are some doomed to fail? That was one thing I didn't seem to get completely clearly from your opening statement.

William Messenger:  Well, given that I have cases in virtually all these categories, I'm going to say that they all have very high chance of success and are all very meritorious. As far as the actual chances, one never knows how things are going to go in court. All you can do is put forth the best argument and hope the judges or justices see it your way. But I do think that each of these various cases will turn on, or should turn on, one particular issue. I think the clawback cases, the big issue is the good faith defense. If the courts don't buy that, they should succeed. If the court does, then they don't. And as mentioned, I think that, given that there's so many of these cases and the issue here so important, something the Court came close to looking at before, eventually you might get a Supreme Court decision on that. And obviously, whichever way the Supreme Court goes could control the result of all the cases that are still pending at that time.

And then turning to the revocation cases, I think there's other arguments out there. My opinion is they should really turn on that waiver question to the extent you have a dues deduction agreement. And so we'll see what the courts think about that, of what does constitute a First Amendment waiver in this context. The criteria is pretty well established of what a First Amendment waiver is, and there's tons of cases on that. But in this context, it's something of a new issue for the courts, and we'll have to see how it comes out. And then the exclusive representation, the first knock at the door, so to speak, will be the Bierman case soon, and we'll see how much interest the courts have, the Supreme Court, at least. And then in the circuit courts, there's a number of other cases, all of which post-Janus, and we'll see what the courts do with it.

Micah Wallen:  All right. Well, we do have two questions lined up now, so without further ado, we'll go to the first caller.

Caller 1:  Hi. I have a question. Bill, it was a great presentation. My question is about the clawback cases. Have there been -- have any of the unions made any kind of state action argument in those cases? That is saying, "Well, we just told the state employer who was in the union, who wasn't. The state then took the money out of the employee's checks and gave it to us. We didn't engage in the unconstitutional conduct, the state did. And we're no more liable for that than a person who got a job from a discriminatory employer would be liable for the discrimination." So the question is have any of the unions made an argument along those lines, and if so, have there been any judicial opinions about it?

William Messenger:  Sure. I'm not aware of that argument being made. And it'd be difficult because besides the state deducting the money, almost all these deductions are done pursuant to collective bargaining agreements. So most state laws authorized compulsory union fees and dues deduction. However, unless there's a collective bargaining agreement, it's not necessarily automatic. It varies by state. So what you have is unions who negotiate in a collective bargaining agreement that the state will deduct these monies. And the union controls, usually, what monies the public employer deducts. In fact, California passed a law clarifying that public employers basically have to obey the union's voice when it comes to dues deduction. The union says deduct that money, the public employer has to do it. It can't make its own independent judgement of whether it's proper.

So the union is very much responsible for the deductions happening. It can't claim that this is just money the state happened to throw in its lap without it being the driving force behind it. And then also then, on top of that is, as I mentioned, there was a lot of litigation between Abood and Janus dealing with seizure of compulsory union fees. And some of those lower court opinions fleshed out the state action point that there is state action, the union's collection of these fees and participation in the dues deduction process and such.

Caller 1:  Thank you.

Micah Wallen:  And we will now go to our next question.

Caller 2:  Hi. I missed the clawback part. I apologize. But I assume from what you've said that the clawback argument by the union is basically until the Janus decision, Abood arguably was the law, despite all the indications that the Court was going to overturn Abood. And we relied in good faith on Abood, and therefore, we shouldn't have to pay a dime. And if that argument is adopted, how deep is the slippery slope? I'm an employment lawyer, and if there is a prior decision, let's say from my circuit, but the Supreme Court's never spoken to the issue, or there's a prior decision in another circuit and nothing from mine, and my client has relied upon that, and then the law flips, either at the Supreme or in my circuit, and I say good faith, the unions—let's assume the worst for you—the unions have won this clawback good faith argument. So I guess the question is how deep could the slippery slope be if they win that issue?

William Messenger:  That's a great point. And I think there is very much a slippery slope there. If the courts look at the implications of what the union's arguing, most of the briefing try to take the position of well, this is a case where existing Supreme Court precedent was overturned, although they should have saw it coming. But that apart, the question is is a mistaken belief in law a defense? And if it is, why would that be limited just to where precedent is overturned? Could it just be good enough that there's a belief that we thought it was legal to do it? Or is any state statute that's passed, can the unions basically use it and not have any liability under it because it happened to be a statute? Like I gave the example of New Jersey. New Jersey passed a law saying you can't get out of union except for basically during one 10-day period per year. So let's say the union denies a lot of people their right to get out based on that 10-day window. If there's a good faith defense after that window's struck down as invalid, does the union say, "We get to keep all the money"? So how far that goes is a great question.

And then sort of another point that I indicated -- if the union's position is true, this isn't just a rule just for unions. This would extend across 1983. So Section 42, U.S.C. 1983 creates a private cause of action for depravations of constitutional or federal statutory rights. It provides that the person who deprives it is liable to the injured party. The unions aren't arguing that bad faith is an element of a First Amendment depravation. They're arguing that the state of mind, whether or not they had a good faith belief that this was legal, is a defense to Section 1983. So if that's true, that means every private sector defendant who acts under color of state law will now enjoy a good faith defense to what they did, and a defense to paying damages to those who were injured by it. In fact, it might not be limited just to private defendants. Municipalities and cities don't enjoy qualified immunity. Arguably, if state of mind is relevant to 1983, then perhaps a municipality and city can also say, "Hey, we thought what we did was legal under existing law, or our read of the case law. Therefore, we're not liable for damages for the people we've injured by depriving them of their federal constitutional statutory rights."

So the implications of what the union's arguing here are really significant, and I don't know -- these cases are just starting to move, and I don't know if the court's have quite grappled or really though through how big of a deal this is, besides just the union context. But ultimately, we'll see. There's a few very terse decisions dealing with the good faith defense in the wake of Harris. The other cases dealing with a good faith defense recognized by several circuit courts dealt with a particular cause of action that actually required bad faith. It was basically a malicious prosecution action, so to show the depravation, you had to show a particular intent. But whether or not there's a good faith defense to all private sector -- I'm sorry, all 1983 claims is something that really hasn't been litigated yet, and we'll have to see what the courts do.

Micah Wallen:  We have another question lined up, so without further ado, we'll go to the next question.

Roger Condevadia (sp):  Hi. This is Roger Condevadia. First, I want to thank you for the clarity of your presentation. It's just really enlightening.

William Messenger:  Thank you.

Roger Condevadia:  You talked about the legal implications, but I wonder if you could talk a little bit about what are the long-term political implications that might flow from either side winning in these three different categories of cases?

William Messenger:  Sure. So political, in terms of the effect it may have in unions, some of the clawback suits, the amount of money involved is quite significant. On the other hand, eventually it's sort of a one-time deal, so to speak. They've stopped taking agency fees, so as time rolls on and the statute of limitation rolls, eventually there won't be anymore clawback suits, at least not ones worth much money.

But I've never added up how much is involved in all these clawback suits put together, but it could be very significant in terms of the monetary liability the unions may be looking at, which also sort of gives an indication of the scale of their constitutional violations prior to Janus. This amount of money is money the unions illegally took from people. So in Riffey v. Rauner, which again was just Harris v. Quinn renamed as the defendants changed, that case was on behalf of 80,000 people seeking $32 million. So that means SEIU took $32 million from 80,000 people in violation of their First Amendment rights. So the return of that money, besides its effect on SEIU, can have very much the equitable point of making those individuals injured whole. So we have that.

And then in terms of the revocation cases moving forward, how much flexibility, if any, states and unions have to restrict employee's rights under Janus with these dues deductions restrictions could have very significant impact on whether employees can actually exercise their Janus rights. To return to the situation in Ohio that basically had the dues deduction agreement that said you can only get out one 15-day period every collective bargaining agreement, if the courts hold that, the unions are going to run around the country getting every existing union member to sign something that says they can only get out once every three years. And if that's true, that really limits the ability of employees to exercise their rights, and particularly with respect to new employees because new employees are very susceptible to signing whatever's really put in front of them when they start their employment. And the unions have turned to mandatory orientations for new hires and requirements that public employers provide union membership cards and such to new employees.

Bottom line is, between those two requirements, the unions will probably be very effective at cajoling or otherwise getting new employees to sign these cards. And if the courts allow these cards to basically be waivers of their First Amendment rights under Janus for one year, three years, five years, whatever it is, the unions could significantly undermine the First Amendment rights recognized in Janus. So the hope is that the courts see through that and only permit a waiver of First Amendment rights if it truly is voluntary, clearly made, and knowingly made. So those are sort of the stakes of those various forms of litigation.

And then of course, with the exclusive representation of providers, the unions, at least with respect to the Medicaid providers, right now are forcing about 40,000 individuals who aren't public employees, who just receive government money for their services, to accept a mandatory union representative whether they like it nor not. And so if the exclusive representation challenges to those provider unions are successful, all those individuals will be freed, and free to choose whether or not they want to be part of the union or not, as opposed to forced to accept its representation. So those are sort of the stakes of the various three categories.

Micah Wallen:  I'm not seeing any more questions currently lined up. Did you want to offer any closing remarks?

William Messenger:  No, I think we covered it. I think the questions were excellent and helped flesh out some of these points. And it's only been, what, five months since Janus? Actually less, four or five months. So a lot of this litigation now is really just starting to move. And so my guess is by this time next year, we'll have a lot more clarity on what's happening with these various categories, and perhaps do it again, and do a follow-up of this teleforum.

Micah Wallen:  Absolutely. Well, on behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.


Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at