Are Janus Violations a RICO Matter?

Ever since the Supreme Court’s 2018 ruling in Janus v. AFSCME that public sector workers cannot be forced to financially support unions, labor groups have done their best to prevent workers from utilizing those rights. The nonprofit Freedom Foundation has come up with a novel way to push back against that: Use the Racketeer Influenced and Corrupt Organizations Act (RICO) against unions that refuse to grant workers their rights.

The RICO Act was created to bust organized crime but the law also covers “fraud and related activity in connection with identification documents,” as well as wire fraud, and a case can be made that that’s what some unions have been up to. The foundation’s RICO complaint filed in Oregon District Court Monday will certainly make an interesting test case.

The foundation filed the case on behalf of Staci Trees, an employee of the Oregon Department of Transportation. Shortly after the Janus ruling, Trees notified the union that represents the department, Service Employees International Union Local 503, that she wanted to drop her membership and stop having dues, about $95 a month, automatically deducted from her paycheck. The union did not abide by her request.

Trees again notified the union that she was opting out in December 2020. Her request was again rejected. The union told Trees that she had previously signed a membership agreement that limited opting out of to an annual two-week period. This was news to Trees. When she asked the state to stop deducting dues, she was told it relied exclusively on the union for information on payments.

She was eventually able to get a copy of the membership document she allegedly signed and discovered it was an obvious forgery, even including erroneous employment data. On the basis of that forged document, Local 503 had taken about $3,000 directly from Trees’s paycheck. This continued despite her repeated requests over more than two years to have her Janus rights respected.

This is far from the only case of a public sector union denying a worker’s Janus rights. In most cases, unions attempt to get workers to sign away their rights, but cases of forgery aren’t uncommon. States haven’t been standing up for the workers, either. Maria Quezambra, a mother who participated in California’s In-Home Supportive Services program, for six years had a portion of the state funds she received to take care of her son diverted to the United Domestic Workers of America based on forged document. A district court last year dismissed Quezambra’s attempt to get the dues refunded. The court ruled that the union wasn’t responsible for the state’s action of diverting Quezambra’s money and that the state was not responsible for the union forging her signature.

All of this is completely contrary to what the Supreme Court intended in Janus. The majority was crystal clear that the individual worker’s right to opt out was paramount. “[N]either an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” Not the use of “affirmatively.”

Yet unions have frequently been caught trying to circumvent the Janus ruling. Whether that amounts to the type criminal conspiracy covered by the RICO Act is a matter for the courts to decide, but it is a question that should be answered.