Appeals court: No rehearing for class action vs SEIU to obtain $32M refund of illegal fees

By Jonathan Bilyk | Jan 8, 2019

Former Illinois Gov. Pat Quinn was endorsed by SEIU in 2009.   Youtube screenshot

A federal appeals panel in Chicago has rejected the request by a group of home caregivers for a new hearing to reconsider the courts’ prior decisions denying them the opportunity to bring a class action to recover nearly $32 million they accuse a union of unconstitutionally taking from them under a state law invalidated by a U.S. Supreme Court decision.

On Jan. 4, the U.S. Seventh Circuit Court of Appeals denied the caregivers’ request for a new hearing before the full appellate court to again make their case the federal courts, to date, have erred in declaring they have no basis for a class action against the Service Employees International Union, despite recent Supreme Court rulings demolishing the legal foundation the state of Illinois had relied upon to force the caregivers to pay fees to the unions.

The rehearing denial came about two weeks after the caregivers, through their attorneys with the National Right to Work Legal Foundation, had filed their petition with the Seventh Circuit.

Earlier in December, a three-judge panel from the Seventh Circuit declared it did not believe the Supreme Court’s decision in the case of Janus v American Federation of State County and Municipal Employees (AFSCME) did not change anything in its prior decisions. The appeals court against upheld the ruling of a federal district judge who shot down the class action against the SEIU.


Mark Mix   National Right to Work Foundation

In the Dec. 6 ruling, the judges, including Seventh Circuit Chief Judge Diane P. Wood, emphasized the caregivers can only sue the union for the return of the illegal fees individually, and not as a class.

“Nothing in Janus speaks to the suitability of class treatment of these issues under the unusual circumstances of this case…,” Wood wrote in the Dec. 6 opinion.

The caregivers’ lawsuit had centered on approximately $32 million the plaintiffs, who are not state employees, said the state had improperly seized from the money they received from the state as subsidies for the care they provide to individuals with disabilities in their homes.

From 2008-2014, the state, under former Gov. Pat Quinn, a Democrat backed by SEIU, had used a law to declare all in-home personal care assistants paid through state subsidies to be state employees, subject to representation by the SEIU.

While caregivers could decide whether to formally join the union and pay dues, the state subtracted so-called “fair share fees” or agency fees, from the checks sent to non-union caregivers, ostensibly to offset the union’s bargaining costs.

However, in 2014, the Supreme Court struck that arrangement down, declaring in Harris v Quinn such compulsory fees to be an unconstitutional infringement on the rights of personal assistants and child care providers who were not on the state payroll and never had asked to be represented by the SEIU or any other union.

The Harris decision then sparked the caregivers’ class action, as they seek to recover the hundreds and thousands of dollars the state had diverted from their pay to the union coffers.

Judges, however, have so far said the case can’t be brought as a class action, primarily because they believe it would be too difficult for the courts to be able to say the 80,000 affected caregivers actually didn’t want the union to take their money.

The plaintiffs appealed the decision to the Supreme Court, arguing the decision would incentivize unions to “keep seizing fees from nonmembers until a court forces them to stop, because the unions will be able to retain most of the illegally seized monies.”

In the meantime, the Supreme Court decided in Janus that states trample the rights of non-union employees when they are forced pay “fair share” fees. Supreme Court Justice Samuel Alito particularly noted such fee payments had resulted in “billions of dollars … taken from nonmembers and transferred to public-sector unions in violation of the First Amendment.”

The Supreme Court then granted the caregivers’ petition to vacate the prior rulings denying them their class action attempt. The Supreme Court directed the Seventh Circuit to reevaluate its prior ruling in light of Janus.

After the Seventh Circuit said the Janus ruling changed nothing concerning the caregivers’ class action, the caregivers petitioned for a rehearing before all of the judges on the appeals court. They argued the courts have been mistaken in asserting workers must prove they didn’t want the union to take their money, if they want a refund.

They assert the courts have overlooked Janus’ finding unions must secure “clear affirmative consent” from workers before taking any fees from their pay.

“The U.S. Supreme Court ruled that SEIU had illegally confiscated union dues from thousands of Illinois homecare providers, but the ruling challenged by this petition denies those same caregivers the opportunity to reclaim the money that never should have been taken from them by SEIU in the first place,” said National Right to Work Foundation President Mark Mix, in a prepared statement issued when the caregivers filed their petition on Dec. 20.

In the order denying the rehearing petition, however, the Seventh Circuit said no judge on the circuit supported the rehearing request.

The plaintiffs could yet appeal the decision again to the Supreme Court. However, the National to Right Work Legal Foundation has yet to publicly state what it intends to do in light of the Seventh Circuit’s latest decisions on the matter.

A spokesman for the National Right to Work Foundation did not immediately reply to questions from the Cook County Record on Dec. 8.

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Organizations in this Story

National Right to Work Foundation Service Employees International Union State of Illinois U.S. Court of Appeals for the Seventh Circuit U.S. Supreme Court

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