Category: Public Employers

March 29, 2018

What Could Janus Mean for New York?

A case pending before the U.S. Supreme Court could have a major impact on public-sector unions throughout the country. The Court’s decision might allow any government employee to refuse to pay union dues. The case is Janus v. American Federation of State, County and Municipal Employees (AFSCME) Council 31. The Supreme Court heard the parties’ arguments on February 27, 2018. It should issue its decision this spring.

Janus v. AFSCME Council 31

In February 2015, then-newly elected Illinois Governor Bruce Rauner issued an executive order prohibiting Illinois state agencies from enforcing agreements requiring employees who are not union members to pay union fees. Governor Rauner began a lawsuit in federal court seeking to declare that his executive order is valid and that the First Amendment bars these forced-fee arrangements.

Mark Janus joined the litigation. He is part of a bargaining unit including many titles of state employees. AFSCME Council 31 represents the bargaining unit. Janus is not a union member. But he is nonetheless represented by AFSCME Council 31 based on his position being part of the bargaining unit.

The federal district court dismissed the case, and the U.S. Court of Appeals for the Seventh Circuit upheld the dismissal. These courts relied on the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education. In Abood, the Supreme Court ruled that although public employees cannot be required to pay for unions’ political activities, they can be required to contribute to the union’s actual costs of contract negotiation and administration.

In September 2017, the Supreme Court agreed to hear Janus’s appeal. He is asking the Court to rule that, under the First Amendment, public employees cannot be required to fund unions against their will.

Outcome Foretold?

Many predict that Janus will prevail based on another Supreme Court ruling from two years ago.

The case of Friedrichs v. California Teachers Association raised substantially the same constitutional questions as Janus. The Court heard oral arguments in Friedrichs in January 2016. Before a decision came down, Justice Antonin Scalia passed away unexpectedly in February. Down to eight Justices, the Court issued a 4-4 split decision. This result affirmed the lower court’s decision, which was consistent with Abood.

With the addition of Trump appointee Neil Gorsuch, who is commonly associated with the conservative Justices who would have found the California law unconstitutional in Friedrichs, it would not be surprising if the Court reaches a 5-4 decision in Janus’s favor this time.

What a Reversal Would Mean

Unless the Supreme Court somehow limits its decision more narrowly, a finding in Janus’ favor would likely apply to public employees throughout the country. However, the primary impact would be felt in states where public employees may unionize for purposes of collective bargaining with their government employers. That is a matter of state laws, as the National Labor Relations Act only applies to private-sector workplaces.

In New York, California, Illinois, and elsewhere, public employees may raise their hands and object to paying anything to unions that represent them. This response could potentially create significant funding deficits for public-sector unions. In New York, the largest of these include AFSCME, the Civil Service Employees Association (CSEA), and the New York State United Teachers (NYSUT).

Although it’s possible this ruling would cause union membership to go down among public employees, many employees will probably still support their unions. If nothing else, individual employees may be reluctant to upset their co-workers by refusing to contribute. Some employees will fear reprisal, whether warranted or not.

It’s too early to predict whether the ability to withdraw financial support will lead to union decertification. Or whether unions will effectively abandon representation of some units based on lack of funding by the bargaining unit members.

It’s also not clear that employers would necessarily welcome these changes to their established bargaining relationships. Among other possibilities, employers may see one union leave only to be replaced by another that is more difficult to deal with.

Should Employers Do Anything Now?

This is a constitutional question pending before the Supreme Court. Thus, there’s not much that anyone can do to change the legal outcome. It will be whatever the Court says it is, barring a constitutional amendment, which is unlikely to occur anytime soon.

That doesn’t mean that everyone is just sitting back and waiting for the decision. If the Court decides against unions, they will employ countermeasures. Most obvious, they will try harder to persuade employees to join and pay dues. Whether an individual government entity can or should try to educate employees otherwise may depend on state laws and specific circumstances.

For many public employers, the most important thing is to watch out for the decision and continue to keep eyes and ears open to see how employees and unions respond. In some cases, it will probably become necessary for employers to develop new labor relations strategies based on any related developments. But that will not be a one-size-fits-all reality.

February 28, 2018

New York Public Employees Get Paid Cancer Screening Leave

Beginning March 18, 2018, public officers and employees in New York State may take paid leave to undertake cancer screening. This modifies earlier cancer screening leave laws that only applied to screening breast and prostate cancer.

According to the bill sponsors: “The purpose of this legislation is to encourage people to be screened regularly for all types of cancer by providing time off from work, thereby increasing the number of cancers caught at an early stage and improving public health.”

The amendment passed unanimously (60-0) in the New York State Senate. The Assembly passed it on a 134-6 vote.

Governor Andrew Cuomo signed the change into law on December 18, 2017, but it would not take effect for 90 days.

Who Is Eligible?

This right extends to every public officer or employee of the state or any county, community college, public authority, public benefit corporation, board of cooperative educational services, vocational education and extension board, school district, or other participating employer in the New York state and local employees’ retirement system or the New York state teachers’ retirement system.

The law does not apply to non-governmental employers in the private sector.

What Type of Cancer Screening?

Any kind.

Where Section 159-b of the New York Civil Service Law previously referred to screening for “breast cancer,” it now simply says “cancer.”

The only change in the entire law was to delete that single word twice. But that small change significantly expands the leave available to public employees.

(Note: Another section of the Civil Service Law that provided leave for prostate cancer screening was simultaneously repealed as redundant.)

How Does the Leave Work?

If the employee seeks time off for cancer screening, the employer must excuse the absence with pay. The employer cannot charge the leave against any other leave available to the employee (e.g., PTO, vacation, or sick leave). This paid cancer screening leave is available for up to 4 hours per year.

Employers may require all employees taking paid cancer screening leave to provide a written referral from a physician or other health care provider.

What Do Public Employers Need to Do?

At a minimum, New York public employers must accept requests for time off for cancer screening beginning March 18, 2018. Governmental entities that have policies in place for breast cancer and prostate cancer screening leaves should amend them.

Employers should expect more requests for cancer screening leave now that the law covers all forms of cancer.

December 5, 2017

What is PERB?

The New York Public Employment Relations Board (PERB) administers the Taylor Law, which extends collective bargaining rights to public employees in the state. The Taylor Law created PERB with its enactment in 1967.

Since July 2010, PERB has also administered the New York State Employment Relations Act, which governs collective bargaining for private employers in New York over which the National Labor Relations Board (NLRB) does not exercise jurisdiction. However, because the NLRB’s jurisdiction over private employers is broad, the overwhelming majority of PERB’s work still involves only public (governmental) employers.

PERB is similar to the NLRB in that it operates primarily through adjudication. Whereas the federal Labor Board processes “unfair labor practice” charges, PERB handles “improper practice” charges. Both entities oversee representation cases–determinations of which labor organization, if any, represents a particular group of employees.

PERB Board

The governor appoints the 3 members of the PERB Board, with the advice and consent of the State senate. No more than 2 of the board members can be from the same political party. Board members hold 6-year terms, with the governor appointing one member to serve as the chair.

The Board and most of the agency’s staff operate out of Albany. There are also regional offices in Brooklyn and Buffalo.

John Wirenius chairs the Board. Robert Hite is another board member. The third seat is vacant.

PERB Representation Procedures

Under the Taylor Law, public employers in New York can voluntarily recognize a labor organization as the bargaining representative of certain employees.

Where the employer has not voluntarily recognized a union to represent select employees, the union can file a petition with PERB seeking certification as the employees’ exclusive bargaining representative. The union must also file a “showing of interest” by at least 30 percent of the employees in the proposed bargaining unit.

The employer, and other interested parties (e.g., other union(s) claiming majority support), have 10 days to file a response to the representation petition. Then PERB investigates the facts surrounding the petition to determine whether there is majority support for the union representation. If necessary, there may be a hearing before an administrative law judge as part of its inquiry.

Unlike in the NLRB representation process, PERB need not hold an election before determining the question of representation. Sometimes, however, more than one union seeks representation of the same employees. Or there is insufficient evidence of support for certification without an election. Then PERB will hold an election to determine the representation status.

There are also procedures for decertification and unit clarification.

Role in Collective Bargaining

PERB oversees various procedures related to impasse resolution in collective bargaining. In other words, it gets involved when New York public employers and the unions representing their employees can’t agree on terms of employment.

The Office of Conciliation provides services related to mediation, fact-finding, and interest arbitration.

Either party to the negotiation of a labor agreement may file a declaration of impasse when it believes the parties cannot make further progress on their own. If the Director of Conciliation finds the declaration sufficient, a mediator will be appointed.

If the mediation process does not resolve the negotiations, then the matter will proceed either to fact-finding or interest arbitration. Fact-finding applies to most negotiations involving public labor negotiations in New York. However, interest arbitration prominently applies to police office and fire-fighter labor contracts.

Improper Practice Charges

When public sector unions or employers feel that their rights under the Taylor Law have been violated, they may file an improper practice (IP) charge with PERB.

Once an agency director initially reviews the IP charge and forwards it to the non-filing party, the respondent party must file an answer to the charge (among other possible responses).

Next, PERB typically schedules a conference between the parties with an Administrative Law Judge. If the conference does not resolve the dispute, then the case may proceed to a hearing before an ALJ.

If either party does not agree with the ALJ’s decision following a hearing, they may appeal to the PERB Board.

Know Before You Go

The New York Public Employment Relations Board needn’t be a scary place. Still, most employers don’t want to end up there. Yes, sometimes employers initiate PERB cases. But unions file most of them.

The best way to avoid PERB is to make sure you are following the Taylor Law. But, even then, negotiation impasse may be unavoidable at some point.

Especially if you don’t have experience with PERB and its procedures, you shouldn’t just go in to a conference or mediation assuming everything will go your way. Usually, it will be best to consult your city/town/village/county/school attorney first. If they don’t have the expertise, then you may need to also speak to a lawyer who regularly handles labor and employment matters for public employers.