June 18, 2018 2018 Changes to the Civil Service Law
KEEPING YOU INFORMED…
We are writing to advise you that a portion of the Taylor Law (specifically, Civil Service Law § 208) has been modified as a part of this year’s legislation accompanying the 2018-2019 New York State Budget Bill. The changes appear to be a proactive response to a highly-anticipated U.S. Supreme Court decision, Janus v. American Federation of State, County and Municipal Employees, Council 31. This case will decide whether compelling public employees to join a union and pay either union dues or “agency fees” (i.e., mandatory fees for members who are a part of a bargaining unit, but do not wish to pay union dues) is unconstitutional pursuant to the First Amendment. It has been closely watched by employers, unions and employees alike.
Some of the changes in the legislation may be similar, if not identical, to your existing practices and procedures regarding union membership/dues deductions. Others impose strikingly new/different obligations on employers, some of which you may find surprising.
Union Dues
The prior version of the Taylor Law did not contain a deadline for an employer to begin deducting union dues from an employee’s paycheck. Pursuant to the amended Taylor Law, a public employer must now, upon receiving a signed[1] dues deduction authorization card, begin making the deductions “as soon as practicable, but in no case later than [30] days after receiving proof of a signed dues deduction authorization card[.]” The dues must then be transmitted to the respective union within 30 days of the deduction. The dues deduction authorization will remain in full force and effect until one (or more) of the following occurs:
1) An employee revokes his/her membership in the union, in writing, and in accordance with the signed dues deduction authorization (i.e., if the authorization says one cannot revoke it until at least one year has passed, the employee may not revoke, in most circumstances, prior to the end of that one-year period); or
2) The employee is no longer employed by the public employer. (But, if the employee is reemployed by the same public employer in a position represented by the same union within a one-year period, then the right to deduct dues from the employee is automatically reinstated.)
The amended law also provides that, if an employee who has signed a dues deduction authorization card is either removed from the employer’s payroll or otherwise placed on a paid or unpaid voluntary or involuntary leave of absence, the employee’s union membership must be continued (and, consequently, the dues deductions must be continued) upon the employee’s restoration to the payroll or to active duty. The legislation does not address whether an employer must deduct “back” dues for the period that the employee was off of the payroll. We suggest that you not do so unless the unions representing your employees advise you, in writing, that their bylaws or dues deduction procedures (if any) cover this.
Employer Obligation to Provide Information
The amended law requires that, within 30 calendar days of employment, re-employment, or promotion or transfer to a new bargaining unit, the employer must notify the applicable union, if any, of the following information: the employee’s name; address; job title; employing agency, department or other operating unit; and work location. This requirement would, therefore, apply when employees are newly-eligible to become members of a particular bargaining unit (i.e., hired or re-hired), or are newly-eligible to become a member of a different bargaining unit than the one to which he/she previously belonged (e.g., when a teacher becomes an administrator and transfers from the teachers’ bargaining unit to the administrators’ bargaining unit).
Union “Meet and Greet”
Within 30 calendar days of providing the above-mentioned information to the respective union, an employer must allow a “duly appointed representative of the employee organization that represents that bargaining unit” to meet with the employee for a “reasonable period of time” on working time and without charging the employee’s accruals, unless otherwise specified in a collective bargaining agreement. The arrangements for this meeting must be made in consultation with a designated employer representative.
Importantly, the law does not define what constitutes a “reasonable period of time.” Some collective bargaining agreements already arrange for paid periods of time during which a union can meet with new employees (e.g., Superintendent’s Conference Day). The procedure by which these meetings occur, including how the union should request the meetings (e.g., by e-mail, phone call, or written letter and to whom the communication should be addressed) and the timing and duration of the meetings (e.g., during an employee’s paid 15-minute break) are all mandatorily negotiable. As a result, we recommend that you review your collective bargaining agreement(s) and contact us to determine whether it is advisable for you to demand impact negotiations with your unions regarding the impact of this change to the Civil Service Law on your workplace.
The law also does not address what, if anything, an employer must do when an employee refuses to meet with the union for the “meet and greet.” It is our opinion that, as long as the employer has arranged/attempted to arrange the “meet and greet” opportunity in accordance with the law, it has satisfied its legal obligation with respect to this issue. We, therefore, advise that the employer “stay out” of any issues between the employee and union. In that situation, however, we strongly recommend that the employer document its efforts to arrange the “meet and greet” and the employee’s subsequent refusal to meet with the union.
Duty of Fair Representation
The amended law redefines what constitutes an “improper practice” by a union. Specifically, it is no longer a violation of a union’s duty of fair representation to limit its services to, and representation of, “non-members” (i.e., non-union dues/non-agency fees payers) to solely dealing with contract negotiations and enforcement of a collective bargaining agreement’s terms. Expressly excluded now from a union’s obligations is providing representation to non-members in the following circumstances: 1) during employer questioning (e.g., Weingarten meetings); 2) in statutory/administrative proceedings to enforce statutory or regulatory rights (e.g., Education Law § 3020-a or Civil Service Law § 75 hearings); and 3) “in any stage of a grievance, arbitration or other contractual process concerning the evaluation or discipline of [an] employee where the non-member is permitted to proceed without the employee organization and be represented by his/her own advocate.” The amended law also permits a union to exclude non-members from receiving any non-contractual (i.e., non-collective bargaining agreement-based) legal, economic or job-related services or benefits it provides to its members. (If the U.S. Supreme Court decides in Janus to uphold the status quo, then this aspect of the Taylor Law amendment will likely be rendered meaningless because there will not be any “non-members” to whom unions may provide limited services and benefits.)
The “Janus” Clause
Another interesting aspect of the amended law is that it contains severability language, presumably in anticipation of the Janus decision, stating that, if any portion of this law or of a signed dues deduction authorization is deemed unconstitutional or otherwise invalid by the courts, the remainder of the law or dues deduction authorization will continue to apply. This means that, in all likelihood, the Janus decision will not completely undo the effects of the amended law.
We will be issuing a client memo of the impact of the Janus decision on, among other things, this amended law, after the Supreme Court has issued its decision.
If you would like to discuss in more detail these new changes to the Taylor Law and its potential impact on your workplace/bargaining units, please contact Alyssa L. Zuckerman, Esq. at (631) 414-5864 or one of our other attorneys at (631) 694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
[1] The amended law also authorizes dues deduction cards to be electronically signed.
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© Lamb & Barnosky, LLP 2018