The New York State Public Employees’ Fair Employment Act, commonly known as the Taylor Law, is a uniquely broad statute that ultimately touches nearly every corner of state and local government in New York.
This manual is intended to help New York public employers understand four key points relating to their rights and responsibilities under the Taylor Law in the wake of the Supreme Court’s Janus v. AFSCME ruling.
Those points are as follows:
- Employers can talk to their employees about collective-bargaining issues—including union membership and Janus rights.
- Union dues should only be deducted for employees who have signed a dues-deduction authorization.
- Changes made to the Taylor Law since 2018 impose new obligations on New York’s state and local employers.
- Agency Fees or similar payments or deductions are unconstitutional.
Each of the following sections includes recommended actions for public employers. Relevant statutes and caselaw are cited throughout, frequently asked questions are answered, and sample materials are provided.
Employers can talk to their employees about collective bargaining issues—including union membership and Janus rights.
Employers have the right to communicate with employees and prospective employees on their terms and conditions of employment as long as the communication is not coercive with respect to the employees’ rights to join or participate in a union. Communications should be statements of fact that advise the employee of his/her rights and options. This communication can occur:
- when interviewing candidates for employment;
- in an “on-boarding” discussion with a new hire; and
- in personnel policies and manuals adopted by the employer.
Given the possibility of being charged with an improper practice under CSL §209-a.1 (a), (b), (c) or (f), some public employers may feel overly constrained in their communications with their employees regarding issues such as agency fees, the Janus decision and the 2018 Taylor Law amendments, not to mention the law itself. Such trepidation is misplaced. It is only communication by public employers that is intended to interfere, restrain, discourage or coerce from exercising rights to join, form or participate in unions that could form the basis of an improper practice charge. Providing employees, even employees represented by a union, with factual information in a non-coercive, non-threatening manner does not violate the law.
Most notably, employers may notify employees (pre-hire and current) specifically about Janus rights. The Janus decision makes the issue of agency fee arrangements a prohibited subject of bargaining, so discussing the commonly accepted implications of the decision cannot constitute a violation.1 An example of a permissible notification letter can be found here.
Furthermore, informing employees of changes in law in a factual manner does not constitute a “direct dealing,” another prohibited practice, as a direct dealing charge requires negotiating with an employee for the purpose of reaching an agreement.2
Posting the collective bargaining agreement (CBA) between a public employer and a public employee organization online may alleviate some confusion. The CBA is a public document subject to the NYS Freedom of Information Law (Public Officers Law §84, et seq.) and should not be shrouded in secrecy or confidentiality. PERB’s rules (4 NYCRR 215.1) require that each public employer provide to PERB a copy of any negotiated CBA under CSL § 205.5 (e). For many years, PERB has made these available online.
What the public employer should do:
- Notify all current employees in writing about the Janus ruling (see example).
- Ensure that communications with applicants and new hires explain that:
- they have the right the choose whether or not to join a union;
- the annual dues rate of their unit’s exclusive representative;
- withdrawal of dues-deduction authorization is subject to restrictions; and
- the terms and conditions (e.g. pay and benefits) of their position and title are the same regardless of their membership choice (see example).
- Make all collective bargaining agreements, side letters, and bargaining unit definitions publicly available on the employer’s website.
- Update the employee manual to reflect that:
- the employee has the right the choose whether or not to join a union; and
- terms and conditions of employment (e.g. pay/benefits) are not affected by membership.
Relevant Law: Civil Service Law (CSL) §209-a (underlined material is new) provides:
Improper employer practices. It shall be an improper practice for a public employer or its agents deliberately (a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section two hundred two of this article for the purpose of depriving them of such rights; (b) to dominate or interfere with the formation or administration of any employee organization for the purpose of depriving them of such rights; (c) to discriminate against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any employee organization; (d) to refuse to negotiate in good faith with the duly recognized or certified representatives of its public employees; (e) to refuse to continue all the terms of an expired agreement until a new agreement is negotiated, unless the employee organization which is a party to such agreement has, during such negotiations or prior to such resolution of such negotiations, engaged in conduct violative of subdivision one of section two hundred ten of this article; (f) to utilize any state funds appropriated for any purpose to train managers, supervisors or other administrative personnel regarding methods to discourage union organization or to discourage an employee from participating in a union organizing drive; (g) to 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. It shall be an affirmative defense to any improper practice charge under paragraph (g) of this subdivision that the employee has the right, pursuant to statute, interest arbitration award, collectively negotiated agreement, policy or practice, to present to a hearing officer or arbitrator evidence of the employer’s failure to provide representation and to obtain exclusion of the resulting evidence upon demonstration of such failure. Nothing in this section shall grant an employee any right to representation by the representative of an employee organization in any criminal investigation; or (h) to disclose home addresses, personal telephone numbers, personal cell phone numbers, personal e-mail addresses of a public employee, as the term “public employee” is defined in subsection seven of section two hundred one of this article, except (I) where required pursuant to the provisions of this article, and (II) to the extent compelled to do so by lawful service of process, subpoena, court order, or as otherwise required by law. This paragraph shall not prohibit other provisions of law regarding work-related, publicly available information such as title, salary and dates of employment.
Union dues should be deducted only for employees who have signed dues-deduction authorizations.
CSL §208.1(b) entitles a union to automatic dues deduction “upon presentation of dues deduction authorization cards signed by individual employees.”
Most payroll systems came online after New York State-mandated agency-fee collection for local governments and school districts in 1992, meaning there was no immediate need to differentiate between dues-paying union members and non-members (agency-fee payers). In the leadup to Janus, a review by the Empire Center found nearly three in four public employers could not make this distinction, and that many were deducting dues without first having been presented with a dues-deduction authorization card.
If an employee has not signed a dues-deduction authorization card, dues should not be deducted from his or her pay.
Now that New York State requires public employers to enforce the terms of dues-deduction authorization cards (see section 3, page 6), it is more important than ever that employers possess them. The public employer should review the terms to determine whether they place any burden or responsibility on the employer (e.g. to escrow funds). Since it is unlikely that the union will agree to defend and indemnify the employer from any actions arising from disputes between the member and the union, the employer may want to consider alternate language as a bargaining subject. If a union submits new authorization cards, the employer cannot refuse to acknowledge them on minor technical deficiencies.3
What the public employer should do:
- Immediately verify that any employee for whom dues are being deducted has signed an authorization card.
- Review membership terms outlined on cards.
- Consider contract language that will indemnify the employer from any actions arising from disputes between the member and the union concerning dues deductions.
Relevant Law: CSL §208.1 (underlined material is new) provides:
A public employer shall extend to an employee organization certified or recognized pursuant to this article the following rights: (a) to represent the employees in negotiations notwithstanding the existence of an agreement with an employee organization that is no longer certified or recognized, and in the settlement of grievances; and (b) to membership dues deduction, upon presentation of dues deduction authorization cards signed by individual employees. A public employer shall commence making such deductions as soon as practicable, but in no case later than thirty days after receiving proof of a signed dues deduction authorization card; and such dues shall be transmitted to the certified or recognized employee organization within thirty days of the deduction. A public employer shall accept a signed authorization to deduct from the salary of a public employee an amount for the payment of his or her dues in any format permitted by article three of the state technology law. The right to such membership dues deduction shall remain in full force and effect until:(i) an individual employee revokes membership in the employee organization in writing in accordance with the terms of the signed authorization; or (ii) the individual employee is no longer employed by the public employer, provided that if such employee is, within a period of one year, employed by the same public employer in a position represented by the same employee organization, the right to such dues deduction shall be automatically reinstated. (c) Should the individual employee who has signed a dues deduction authorization card either be removed from a public employer’s payroll or otherwise placed on any type of involuntary or voluntary leave of absence, whether paid or unpaid, such public employee’s membership in an employee organization shall be continued upon that public employee’s return to the payroll or restoration to active duty from such a leave of absence.
Changes made to the Taylor Law since 2018 imposed new obligations on New York’s state and local employers.
Ahead of the Janus ruling, Governor Andrew Cuomo and the state Legislature modified long-standing state laws to benefit government unions. Additional changes were made in the FY2020 state budget.
As explained in the previous section, the employer is now charged with enforcing the membership-dues deduction agreement. If a signed card is not possessed, however, it is impossible for the employer to follow the law.
The public employer also should be aware of a new statutory requirement to provide information to the union about newly hired, promoted or transferred employees and to provide a union representative with the opportunity to meet with such employees for a reasonable amount of time.
The state Legislature amended CSL §208 to:
- ensure unions prompt payment of union dues when unions submit dues-deduction authorization cards for new members;
- require public employers to accept dues-deduction authorizations in additional formats (e.g. electronic records and signatures);
- provide that the dues-deduction authorization will remain in effect until revoked by the employee in accordance with the terms stated in the authorization;
- ensure that the dues deduction will automatically be restored if an employee leaves the employ of the public employer but returns to the public employer within one year in a position represented by the same union;
- require new employers to let union representatives meet with employees who are newly hired, transferred or promoted into the bargaining unit; and
- require employers, upon the union’s request, to provide (no more than quarterly) a list of the names, addresses, job titles, employing agencies or departments or other operating units and work locations of all employees of the bargaining unit, unless otherwise specified by a collective bargaining agreement.
What the public employer should do:
- Inform its personnel or human resources director of the requirement to provide information to the union about newly promoted, transferred or hired employees.
- Develop a standardized form letter so that the responsible employee need only fill in the blanks.
- Add a step to processing personnel change forms that requires notice to the union in the event of promotions, transfers and new hires.
- Designate a representative for the union to contact to schedule meetings with new hires or transferred or promoted employees and inform that representative of such requirements (see Relevant Law, page 7).
- Adopt a procedure that:
- designates the person to receive and review dues-deduction authorization cards;
- informs each union of the name and title of such person;
- requires date-and-time stamped receipts of authorizations and calendars an action item after two weeks to check if deductions have commenced;
- requires prompt review of authorizations, recognizing that electronic records and signatures are permissible and that authorizations may not be rejected for minor issues;
- requires the person responsible for payroll be informed as soon as authorizations are approved so that deductions can be made within the statutorily required 30 days from receipt (if the employer has biweekly payroll, time to comply is effectively reduced); and
- designates a person responsible to receive and review union requests for bargaining unit lists.
Relevant Law: CSL §208.4 (underlined material is new) provides:
(a) Within thirty days of a public employee first being employed or reemployed by a public employer, or within thirty days of being promoted or transferred to a new bargaining unit, the public employer shall notify the employee organization, if any, that represents that bargaining unit of the employee’s name, address, job title, employing agency, department or other operating unit, and work location; and
(b) Within thirty days of providing the notice in paragraph a of this subdivision, a public employer shall allow a duly appointed representative of the employee organization that represents that bargaining unit to meet with such employee for a reasonable amount of time during his or her work time without charge to leave credits, unless otherwise specified within an agreement bargained collectively under article fourteen of the civil service law, provided however that arrangements for such meeting must be scheduled in consultation with a designated representative of the public employer.
Agency fees or similar payments and deductions are unconstitutional.
Writing for the majority in Janus, U.S. Supreme Court Justice Samuel Alito wrote, “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay (emphasis added).”
Many collective bargaining agreements contain express language recognizing an “agency shop.” An example of such contract language is as follows:
ARTICLE XX – AGENCY SHOP.
The (County/City/Town/Village) shall deduct from the wages of those employed in the bargaining unit who are not members of the union, a service fee (agency fee) equivalent to the total annual dues paid by members of the union. Such service fee shall be deducted in the same manner as payroll deductions of dues and transmitted to the union.
Since this provision is now unconstitutional and thus unenforceable,4 it should be removed from the collective bargaining agreement. Most unions understand this and will agree to remove such language.
Soon after Janus was decided, Assemblyman Richard Gottfried of Manhattan signaled he would introduce legislation to help unions “overcome” the court’s decision by permitting direct subsidies to the unions in lieu of agency fees. Such arrangements, if pursued, would also be constitutionally suspect and should be avoided.
What the public employer should do:
- Work with the union to remove the agency-fee language from its contract.
- Avoid agreeing to any direct subsidies or other Janus “workarounds” which could subject the employer to federal litigation.
- An employer’s communications to unit members about the substance of negotiations and mediation where merely informative and not threatening or coercive is not violative of the Taylor Law (Greenburgh 11 Union Free School District – 32 PERB 3035 (1999)). An employer’s meeting to inform employees of decisions on layoffs and transfers was not a violation (City of Rochester, 35 PERB 4537 (2002)).
- To constitute a violation, union must show employer dealt with a unit employee on a mandatory subject of bargaining (City University of New York, 38 PERB 3011(2005)). Pre- and post-hire discussion of terms and conditions of employment is not a violation even if employer made misstatements as employer was sharing information believed to be accurate (Town-Village of E. Rochester, 38 PERB 4503 (2005)).
- Evidence sustained a finding by PERB of reasonable cause to believe that city violated CSL §§ 209-a(1)(a), 208(1)(b), 208(3)(b) and 202 when it refused to deduct city employees’ union dues and agency shop fees because of “a few” improperly executed dues-deduction authorization cards; thus, injunction against city was warranted under §209-a(4) pending resolution before PERB, in view of irreparable damage being done to union and its relationship with its representatives. New York State Pub. Employment Relations Bd. v City of Troy, 164 Misc. 2d 9, 623 N.Y.S.2d 701, 1995 N.Y. Misc. LEXIS 54 (N.Y. Sup. Ct. 1995). Ruling on the underlying improper practice charge, PERB found the city’s refusal to deduct and transmit fees was linked to its effort to influence the outcome of negotiations and that the city had a longstanding history of dues deduction without question as to the adequacy of dues-deduction authorizations. City of Troy 28 PERB 3027 (1995). Simply put, the problem, as usual in these types of charges, is the finding of an improper motive for the employer’s actions.
- City of Troy, 28 PERB 3027 at 3064 to the effect that the law controls the agency-shop fee deduction obligations, not the provisions of any contract negotiated at a time when the applicable law was different.
About the author: James W. Roemer, Jr. is in his 50th year of practicing public-sector labor law in New York. He served 17 years as Counsel to the Civil Service Employees Association, Inc. (CSEA) and is the founding and senior partner in the law firm of Roemer, Wallens, Gold & Mineaux, LLP. For the past 33 years, Jim and his firm have served as labor counsel to more than 50 public employers across New York. As a result of his knowledge and experience, Jim’s peers have given him the highest possible ratings for both legal knowledge and ethical standards, making him a uniquely qualified resource.