On June 27, the Supreme Court issued a 5-4 opinion in Janus v. American Federation of State, County, and Municipal Employees, Council 31, Dkt. No 16-1466, holding that compulsory payment of public-sector union fees by non-union members violates First Amendment free speech rights.
The petitioner in Janus, challenged the constitutionality of an Illinois law requiring public employees to pay union agency fees, despite an employee’s choice not to join the union and his strong objection to the union’s positions in collective negotiations. The petitioner argued that the payment of mandatory agency fees by nonmembers in connection with collective negotiations for government employees is inherently political and violates the First Amendment. Siding with the petitioner and striking down the Illinois law, the Supreme Court overturned its prior 1977 decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
In Abood, the Supreme Court held that a union could constitutionally collect from dissenting employees financial support for collective negotiations so long as the fees were not used for ideological or political causes not germane to the union’s duties as the collective negotiations agent. In the Janus opinion, Justice Samuel Alito wrote that “Abood was wrongly decided and is now overruled,” concluding that the mandatory payment of public-sector agency fees violates the free speech rights of nonmembers by compelling them to subsidize private speech. Under Janus, “States and public-sector unions may no longer extract agency fees from nonconsenting employees.” However, the Court stated that unions could require payment from nonmembers for union representation in disciplinary matters and grievances.
The Janus decision leaves open the specific timeframe by which an employee may revoke compulsory payment of public-sector union fees.
For New Jersey public employers, the Janus decision must be applied in light of the requirements of the recently enacted Workplace Democracy Enhancement Act (“WDEA”). The WDEA includes requirements regarding an employee’s withdrawal of consent for the union to collect fees. Additionally, the WDEA prohibits public employers from encouraging employees to revoke their union fee deductions and from discouraging employees to join, form or assist a union. Public employers should be prepared to receive employees’ withdrawals of consent and should continue to follow the current statutory WDEA requirements.
If you have any questions or would like to discuss how the Janus decision or the WDEA affects you, please contact Joseph M. Hannon, Esq. at 973-535-7105 or firstname.lastname@example.org, or Jennifer Roselle, Esq. at 973-646-3324 or email@example.com.
Governor Murphy has signed the Workplace Democracy Enhancement Act (“WDEA”) into law. The WDEA takes immediate effect and creates new obligations of which public employers must be aware.
First, the WDEA extends the negotiations unit to include all full and part time employees who perform negotiation unit work. For example, employees who were not included in the unit because they had not met the threshold number of hours or percent of time worked, must be included in the unit within 90 calendar days from the law’s signing.
In addition, the WDEA requires public employers to provide “access” to organization members, and grants the exclusive representative employee organization specific rights, including, but not limited to:
- The right to meet with members on the premises of a public employer during the workday to investigate and discuss grievances or other workplace related complaints, or to address any other workplace issue;
- The right to conduct worksite meetings on the employer’s premises during lunch and other non-work breaks, as well as before and after the workday, in order to discuss workplace issues, collective negotiations, administration of a collective negotiation agreements, and other matters related to the organization’s duties and internal union matters;
- The right for representatives to meet with new employees for a minimum of 30 minutes within 30 calendar days from that employee’s date of hire, without charge for such time against the employee’s pay or leave time;
- The right to certain employee contact information, to be produced in a specific timeframe;
- The right of email use, for matters such as collective negotiation agreements administration, the investigation of grievance, other workplace related complaints or concerns, and internal union matters; and
- The right to demand negotiations over rights of access, subject to binding arbitration.
The WDEA furthermore prohibits public employers from encouraging employees to resign or relinquish membership in a union, and from encouraging them to revoke their authorization of fee deductions. Public employers likewise are prohibited from either encouraging or discouraging employees from joining, forming, or assisting a union. An employer who violates these provisions will be deemed to have engaged in an unfair labor practice, and the WDEA requires the Public Employment Relations Comission to order the employer to make the union whole for any harm that may result from such actions.
Finally, the WDEA amends existing law to provide that union fee deductions may be authorized by means of electronic communication and electronic signatures. In addition, employees of a public employer that have previously authorized deductions must give written notice to the employer “during the 10 days following each anniversary date of their employment” if they wish to revoke their authorization. Upon receipt of an employee’s revocation, the public employer is required to provide notice to the union within five days. The revocation takes effect on the 30th day after the anniversary date of employment.
For further information, please contact Joseph M. Hannon, Esq., or Jennifer Roselle, Esq., Counsel with the Labor Law Practice Group.
Following the February 8, 2017 Appellate Division decision in Kean Federation of Teachers v. Morell, public bodies must review their processes for issuing Rice notices and making available meeting minutes to the public.
In its decision, the Appellate Division expanded the application of the Rice notice requirements to include all situations in which the public body intends to take action on an agenda item which will affect an employee’s “employment appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or [discipline]” of its employees. This requirement attaches to all agenda items, regardless of whether the public body intends to hold a discussion about the matter. The Court reasoned that presenting a Rice notice for all employees on a particular agenda allows the public body to have “flexibility to discuss matters in executive session when necessary and affords the affected employees the opportunity” to request a public discussion.
In the same decision, the Court also evaluated the timeframe required for a public body to release its meeting minutes so that it meets the OMPA’s requirement of making them “promptly available”. At issue was a set of minutes from the September 15, 2014 meeting, which took 94 days to release. A second set, from the December 6, 2014 meeting took 58 days to release. Although the Court did not expressly define a timeline to comply with making minutes “promptly available,” it suggested that a reasonable timeframe for release is within 30-45 days. Even without a clear rule, the Court makes it clear that a 2 or 3 month delay is not justifiable, and mandates public bodies to “adopt a protocol that makes the availability of its meeting minutes a priority.”
The Court’s clear directive to the parties is applicable to all public bodies effective immediately. Public bodies should review their protocols to ensure that Rice notices be issued in advance of taking action on agenda items involving employment matters. Public bodies must also review its processes to ensure an efficient method of producing required meeting minutes (including those which are subject to redaction) relatively soon after receipt of a request.
For additional guidance regarding compliance with the Court’s mandate, please contact Jennifer Roselle at 973-646-3324 or firstname.lastname@example.org. Ms. Roselle is Counsel in the Firm’s Labor Law and Education Law Practice Groups.