August 14, 2007 Amendment to the Taylor Law

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KEEPING YOU INFORMED…

On July 17, 2007, Governor Spitzer signed into law a bill amending New York’s Taylor Law by making it an improper public employer practice:

[T]o fail to permit or refuse to afford a public employee the right, upon the employee’s demand, to representation by a representative of the employee organization, or the designee of such organization, which has been certified or recognized under this article when at the time of questioning by the employer of such employee it reasonably appears that he or she may be the subject of a potential disciplinary action. If representation is requested, and the employee is a potential target of disciplinary action at the time of questioning, a reasonable period of time shall be afforded to the employee to obtain such representation.

The legislation took effect immediately upon its passage. The rights established by the new legislation are similar to “Weingarten rights,” which are provided to private sector employees covered by the National Labor Relations Act pursuant to the United

States Supreme Court’s decision in NLRB v. Weingarten.

Overview of the Legislation

While the full scope of the implications of this legislation still have to be fleshed out, public employers in New York are now statutorily required to provide employees the right to union representation, upon request, when at the time of the questioning it reasonably appears that the employee may be the subject of a potential disciplinary action, regardless of whether the employee has Civil Service Law Section 75 rights. If representation is requested, and the employee is a potential target of disciplinary action at the time of questioning, the employee must be given a reasonable period of time to obtain representation. An employer’s refusal or failure to permit representation is made an improper employer practice subject to the jurisdiction of the Public Employment Relations Board (“PERB).

Affected Employees

The law applies to all public employees. Because non-union employees do not have a “union” to represent them, it is unclear whether the legislation intends to permit non-union employees the right to request union representation, even though a union has no duty to represent them.

Union Representative

Employees covered by Civil Service Law Section 75 are already statutorily entitled to advance written notice of the right to union representation at the time of questioning where the employee appears to be a potential subject of disciplinary action. Unlike Civil Service Law Section 75, the new legislation does not require a public employer to provide prior written notice to the affected employee of his/her right to union representation prior to commencing the interview. Nor does it require the employer to advise the employee of the right to representation. Instead, the employee must request to have a representative present.

It is unclear what impact this legislation will have on existing contractual entitlements regarding union representation in investigatory interviews or disciplinary meetings. We therefore recommend that employers also continue to comply with any existing contractual entitlements.

Union Representative or Designee

The law entitles the employee to be represented by a representative of the employee organization or the organization’s designee. The statute does not limit who may serve as the union’s designee.

Investigatory Interviews

The right to union representation only applies at the time of questioning (the so- called “investigatory interview”) where it “reasonably appears” that the employee may be the subject of potential disciplinary action. The law does not specify whether the reasonable appearance is based on the employee’s or the employer’s perspective. Should P E W adopt the private sector precedent, this determination would be based on the employee’s perspective. Likewise, under private sector precedent, an employer may give the employee the choice of an interview without representation or no interview at all. The employer is always free to continue its investigation without interviewing the employee.

Reasonable Period of Time to Obtain Representation

The legislation provides that an employee, upon his/her request for representation, must be granted a reasonable period of time to obtain representation only where he/she is the potential target of disciplinary action at the time of questioning. The determination of what constitutes a “reasonable” time depends upon the circumstances of each individual situation. It may be as short as five minutes or as long as several days depending upon the situation.

General Guidelines

  • The new law took effect immediately upon its passage.
  • The new law applies to all public employees.
  • The right is fundamentally the same as that already statutorily granted to employees covered by Civil Service Law Section 75. However, for those employees only covered by the new law (i.e., who do not have Section 75 protections), absent a contractual obligation to do so, the employer does not have to advise an affected employee that he/she may request union representation and the employer does not have to provide written notice of the right to representation.
  • The right only applies to “investigatory interviews” or questioning where it “reasonably appears” that the employee may be the subject of a potential disciplinary action.
  • The employer need only grant a reasonable period of time for the employee to obtain representation where the employee is the potential target of disciplinary action at the time of questioning.

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    Please do not hesitate to contact us should you have any questions about this Memorandum.

    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.

    © Lamb & Barnosky, LLP, 2007