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State law requires school districts and other employers to make payroll deductions for union dues and agency fees (union dues minus the cost of lobbying or other political representation). This obligation will be significantly affected by the U.S. Supreme Court’s decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31 and its interplay with New York State’s “Taylor Law.”

Under Janus, agency fees are no longer compulsory for non-union members who fall within the parameters of a bargaining unit, but may continue to be paid on a voluntary basis upon affirmative consent by the employee.

In anticipation of the Janus decision, the Taylor Law was amended this year to tighten the timeframe for making and transmitting union dues deductions from consenting union employees. Specifically, dues must be deducted no later than 30 days after receiving proof of a signed dues deduction authorization card, and they must be transmitted to the union within 30 days.

The amendment further authorizes the employer to accept an “electronically signed authorization card” as opposed to the traditional, hand-signed card.

Finally, the employer is obligated to notify the union within 30 days of an employee being hired or rehired, promoted, or transferred into a bargaining unit, and provide a “reasonable amount of time” for the union to meet with the employee.

The following questions and answers provide some guidance regarding payroll deductions for union dues and agency fees:

Q: Is an employee required to “opt in” to the payment of agency fees or union dues?
A: Yes. The Janus decision makes it clear that in order to make a payroll deduction for union purposes on behalf of an employee, the employee must affirmatively consent or “opt-in” for the deduction to take place. The employee must now affirmatively consent to such withholdings, as there is no longer automatic withholding.

Q: Should our school district or BOCES require all union members to re-sign and submit dues deduction authorization cards because of the Janus decision?
A: No. If an employer already has dues deduction authorization cards on file for employees, no further information from these employees is needed and dues deductions should continue uninterrupted.

Q: Can our school district or BOCES rely on union lists regarding who is or is not a member of the union for the purposes of payroll deductions?
A: No. In New York, the collection of union dues is governed by the Taylor Law, which requires dues deductions to be made “upon presentation of dues deduction authorization cards signed by individual employees.” Recent amendments to this section provide that signed dues deduction authorization cards can take the form of an electronically signed authorization card as well as the traditional, hand-signed card.

Q: What should we tell our employees and union representatives to make our post-Janus payroll process as smooth as possible?
A: It would be prudent for employers to send correspondence to all of their unions, with a copy to individual members and non-members, explaining the following: (a) if the employer has a dues deduction authorization card or other written/electronic authorization from the employee on file, the employee’s union dues deductions will continue uninterrupted; (b) if there is no card or other sufficient written or electronic authorization on file, in order to comply with Janus and the Taylor Law, the district will require proof of an executed card or other sufficient written/electronic authorization, and, shall cease dues deductions if the employee/union does not provide a sufficient written/electronic authorization after a reasonable opportunity to do so; and (c) if the employee previously paid an agency fee, such deductions will cease immediately unless the employee provides written or electronic consent to continue the agency fee deduction or elects to join the union and consents to full union dues deduction.

Q: Suppose our district business office checks its records
before running its next payroll and can’t find
a dues deduction authorization card on file for an
employee. What form of authorization is sufficient
under these circumstances?
A: School districts should consult with their attorneys
if such a situation arises, as this is an unresolved
area of law. Ideally, the employee will promptly
provide a card or other form of written/electronic
authorization indicating their affirmative consent to
a payroll deduction, because the Taylor Law requires
a signed paper or electronic authorization card. The
Janus decision, on the other hand, only addresses the
constitutional requirement for some form of affirmative
consent for withholdings by an employee. In the
event an employee (or a union) insists on submitting
a document electronically signed by the employee,
such as an email, it is likely such document would
satisfy the constitutional mandate expressed in the
Janus decision. However, school officials would be
well-advised to consult counsel regarding whether a
district could lawfully reject such documentation as
falling short of what is required by the newly amended
Taylor Law. Regardless, absent some form of
written or electronic authorization, the district should
cease deduction of dues.

Q: Suppose an employee leaves the district for less than a year due to maternity leave or other reason. Does the employee have to file a new dues deduction authorization card upon returning to work?
A: If an employee who has authorized a dues deduction
is removed from payroll or otherwise placed on an involuntary
or voluntary leave of absence, whether paid
or unpaid, the employee’s membership in the union is
automatically continued once the employee is placed
back on payroll or restored to active duty following
the leave. The employee does not have to fill out a new
authorization card. For any employee who has given
an authorization card, the dues deduction remains in
effect until the employee either revokes union membership,
in writing, or is no longer employed. If an
employee leaves the employ of the school district and
returns within one year, he or she does not have to fill
out a new authorization card.
The landscape of the law in this area will likely
be changing for the foreseeable future. Employers
and unions are waiting to see how the state Public
Employment Relations Board and state courts resolve
disputes in light of both the Janus decision and the
amendments to the Taylor Law. It is more important than
ever that school boards consult with their labor counsel
on specific questions as they arise.
Members of the New
York State Association of
School Attorneys represent
school boards and school
districts. This article was
written by John P. Sheahan
of Guercio & Guercio, LLP
nd Rose A. Nankervis of
Ingerman Smith, LLP.

 

 

 

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LEGAL AGENDA
agency fee deduction or elects to join the union and
consents to full union dues deduction.
Q: Suppose our district business office checks its records
before running its next payroll and can’t find
a dues deduction authorization card on file for an
employee. What form of authorization is sufficient
under these circumstances?
A: School districts should consult with their attorneys
if such a situation arises, as this is an unresolved
area of law. Ideally, the employee will promptly
provide a card or other form of written/electronic
authorization indicating their affirmative consent to
a payroll deduction, because the Taylor Law requires
a signed paper or electronic authorization card. The
Janus decision, on the other hand, only addresses the
constitutional requirement for some form of affirmative
consent for withholdings by an employee. In the
event an employee (or a union) insists on submitting
a document electronically signed by the employee,
such as an email, it is likely such document would
satisfy the constitutional mandate expressed in the
Janus decision. However, school officials would be
well-advised to consult counsel regarding whether a
district could lawfully reject such documentation as
falling short of what is required by the newly amended
Taylor Law. Regardless, absent some form of
written or electronic authorization, the district should
cease deduction of dues.
Q: Suppose an employee leaves the district for less
than a year due to maternity leave or other reason.
Does the employee have to file a new dues deduction
authorization card upon returning to work?
A: If an employee who has authorized a dues deduction
is removed from payroll or otherwise placed on an involuntary
or voluntary leave of absence, whether paid
or unpaid, the employee’s membership in the union is
automatically continued once the employee is placed
back on payroll or restored to active duty following
the leave. The employee does not have to fill out a new
authorization card. For any employee who has given
an authorization card, the dues deduction remains in
effect until the employee either revokes union membership,
in writing, or is no longer employed. If an
employee leaves the employ of the school district and
returns within one year, he or she does not have to fill
out a new authorization card.
The landscape of the law in this area will likely
be changing for the foreseeable future. Employers
and unions are waiting to see how the state Public
Employment Relations Board and state courts resolve
disputes in light of both the Janus decision and the
amendments to the Taylor Law. It is more important than
ever that school boards consult with their labor counsel
on specific questions as they arise.
Members of the New
York State Association of
School Attorneys represent
school boards and school
districts. This article was
written by John P. Sheahan
of Guercio & Guercio, LLP
nd Rose A. Nankervis of
Ingerman Smith, LLP.
How will union locals react to the Janus decision?
By the New York State
Association of School Attorneys
In 2016, 23.6 percent of New York’s wage and salary
workers were union members. Currently, more than 95
percent of the teachers in New York’s public schools are
unionized. But that could change as a result of the Janus
decision by the U.S. Supreme Court in Janus v. American
Federation of State, County, and Municipal Employees,
Council 31.
When given the opportunity in the past, many teacher
union members in New York State dropped their union
membership to save the cost of their dues. For example,
this occurred during the 1970s, when many teacher unions
in New York State engaged in illegal strikes. In some
districts, the Public Employment Relations Board (PERB)
ordered the penalty of loss of employer automatic dues deduction
for lengthy periods of time. This put union locals
in severe financial distress.
Districts should expect unions to exhibit new vigor in
explaining their value to employees. Certainly, one selling
point is that unions provide free legal representation if a
member faces disciplinary charges under both Education
Law Section 3020-a and/or Section 75 of the Civil Service
Law. However, many current union members are not entitled
to disciplinary statutory protection under the law, such
as teacher aides and other non-instructional employees.
These lower paid, non-instructional employees may want
to “save” the cost of union dues.
How union representatives interact with the district
may vary depending on the union membership status
of employees in a bargaining unit. Because unions may
already refuse to proceed with a grievance or go to arbitration,
refusal to process contract “enforcement” grievances
of non-dues paying members may occur. Or, the
amount of time or energy that union officials devote to the
processing of grievances may vary among employees with
different membership status.
Union bargaining representatives can be expected
to present negotiation proposals to soften the impact
of Janus. Here are four possibilities and recommended
responses:
1. A proposal providing that all new employees on their
first date of employment will be directed to meet with
a union representative for 30 minutes.
Locals can be expected to seek to negotiate procedures
and protocols in connection with changes to New
York’s Taylor Law that say the employer must, within
30 days of a new employee being hired, promoted, or
transferred into a bargaining unit, notify the union and
provide the union with the employee’s name, address, job
title, employing agency, department or other operating unit
and work location. The changes to the Taylor Law also
state that within 30 days of such notice the union president
or his or her designee must be given the opportunity to
meet with the employee for a reasonable amount of time –
during working hours and without charge to leave credits.
These amendments will require the public employer
to establish implementation – without question it can be
expected that unions will seek negotiation of the most
advantageous access to new employees.
2. Contractual language that a new employee would
automatically be a union member unless they
affirmatively opted out, in writing, when they were
hired or during a 10-day window agreed to by the
parties.
Such a proposal, if made by unions, would likely be
unconstitutional. A similar provision in a contract was
rejected by the U.S. Supreme Court in Knox v. SEIU Local
1000 (2012). The plaintiffs in Knox argued that the union’s
procedure, which required employees to “opt out” on
an annual basis, was unconstitutional. They specifically
argued that: (1) an “opt-out” requirement is an unconstitutional
burden on the non-union employee because the
nonmember must affirmatively disapprove the fee – essentially
presuming consent to the non-chargeable portion of
the fee; (2) an “opt-out” system fails to serve a compelling
interest of the state; and (3) even if the union had a
legitimate interest in burdening First Amendment rights,
an “opt-out” regime is broader than necessary to serve that
interest. The court ultimately held that an annual “optout”
notice was insufficient when special fees were being
collected by the union, and that a notice should be sent
to union members providing them the option to “opt in”
to special fees. In view of Janus, it is likely this “opt out”
will be found to be unconstitutional. Therefore, districts
should insist on an “opt in” approach.
3. A demand that the district agrees to pay to the
union the equivalent of 50 percent, or any percentage,
of the regular union dues paid by members of
the union for any individual covered by the contract
but who opts out of the union.
In essence, this would create an agency fee payable
by the school district rather than the employee/non-member.
Such proposal must be rejected, as it would represent
an unconstitutional gift of public funds, in violation of
Article VIII, Section 1 of the New York State Constitution.
PERB and the state’s highest court, the Court of Appeals,
have declared provisions to be against public policy and
therefore non-mandatory subjects of collective bargaining
– or unenforceable as violating the New York State
Constitution. (See Bd. of Ed., Great Neck Union Free Sch.
Dist. v. Areman, 1977.) If school districts were to pay
union dues for nonmembers they would be financially aiding
private organizations, which is against public policy.
4. Language that the district will deny any
“anti-union” organization access to its employees.
Organizations opposed to unionization have already
begun proselytizing employees by informing them they do
not have to join the union, nor pay agency fees or union
dues. These messages have been swamping email systems
in some school districts.
However, a school district may not be able to lawfully
screen out such messages. If a school district permits certain
organizations such as textbook companies to access
employees via district email systems, then that may be
considered a limited public forum. (See M.B. ex rel. Martin
v. Liverpool Cent. Sch. Dist., a 2007 ruling by the U.S.
District Court for the Northern District of New York.)
School districts may establish policies placing limitations
on speech in a limited public forum but such policies
must be reasonable and viewpoint neutral.
If a school district decides to “block” emails from
organizations that have been proselytizing against unions
and/or other political speech, they may be subject to First
Amendment challenges. Similarly, communication from a
rival union may not be blocked.
Members of the New
York State Association of
School Attorneys represent
school boards and school
districts. This article was
written by John H. Gross
and Rose A. Nankervis of
Gross Ingerman Smith, LLP. Nankervis

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