On August 15, 2018, the New York State Register published the Public Employment Relations Board’s (PERB) notice of emergency adoption and notice of proposed rulemaking.  The emergency rule went into effect on July 27, 2018, and it allows for an expedited PERB review of issues related to the Supreme Court’s decision in Janus v. American Federation of State, Municipal and County Employees.

The Janus court held that public sector employees who are not union members cannot be compelled to pay “agency fees” because the free speech rights of public sector employees override a union’s right to collect agency fees.  Prior to the Janus decision, New York enacted amendments to the Taylor Law and the General Municipal Law to blunt the anticipated effects of the Janus decision.  Some of the provisions in the amendments have now been called into question after the Supreme Court’s decision in the Janus case.

Specifically, the emergency/proposed rule allows PERB to conduct an expedited review for disputes that present “an issue or issues of law regarding the scope of any duty of fair representation allegedly owed by an employee organization to a non-member, or to any member seeking to terminate membership in an employee organization, or related question. “

The emergency rule appears to be aimed at addressing issues with two specific provisions in the Taylor Law amendments.  The first provision allows unions to limit their representation of non-members (who do not pay dues) to “negotiation and enforcement of the terms of an agreement with the public employer.”  The second provision allows employees to revoke union membership only “in writing in accordance with the terms of the signed authorization.”  In Janus, the Supreme Court held that an employee must clearly consent to deductions, but did not address whether it would be permissible to restrict an employee’s right to revoke such consent.  In fact, at least one class-action has already been filed in New York, challenging, among other things, the legality of “resignation windows” which allow members to revoke only during a certain time period.

In light of all the confusion, PERB has used its emergency rulemaking authority to “clarify the purely legal rights and responsibilities of the parties at the earliest possible time.”  Any party to a dispute, and the PERB director, may submit a request seeking to determine if expedited treatment is warranted.  If the Board finds that expedited treatment is warranted, a hearing will be held, and the Board member or administrative law judge holding the hearing will immediately transmit the record for a full Board review and determination, without submitting any recommendations.

The emergency rule is set to expire on October 24, 2018, and public comment will be received for 60 days after the publication.

For more information, please contact Edward A. Trevvett at 585-419-8643 or etrevvett@harrisbeach.com, or the Harris Beach attorney with whom you usually consult. You may also view the recorded webinar from July 11, titled “Union Fee Freeze and the New York Thaw,” or our prior June 27 Legal Alert, titled “SCOTUS Rules: Free Speech Rights of Public Sector Employees Override a Union’s Right to Collect Agency Fees.”

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.