A new law protecting New Jersey public sector unions, which was signed into law by Governor Phil Murphy in May 2018, faces a legal challenge based on a U.S. Supreme Court decision one month later. The law, entitled the Workplace Democracy Enhancement Act (WDEA), establishes standards for interactions between public-sector unions and government employers, and addresses several controversial issues. The Supreme Court’s ruling in Janus v. AFSCME, 585 U.S. ___ (2018), however, could represent a significant reduction in the power of public-sector unions. A lawsuit filed by several union members against their union and various state government officials argues that Janus invalidates certain provisions of the WDEA. Thulen, et al v. AFSCME, et al, No. 1:18-cv-14584, complaint (D.N.J., Oct. 3, 2018). The lawsuit is among the first to test how Janus will impact New Jersey employees’ rights.
Federal and state laws protect workers’ rights to organize for the purpose of collective bargaining, and either to form a union or to join an existing union that can negotiate with management on their behalf. The WDEA declares that any public sector union chosen as “the exclusive representatives of employees in a collective negotiations unit” must “hav[e] access to and be able to communicate with the employees it represents.” P.L. 2018, c. 15 § 2 (N.J. Rev. Stat. § 34:13A-5.12). The law requires public employers to allow union representatives to have reasonable access to employees, and to provide certain employee information to the union within a specified time frame.
Public-sector union members may authorize their employer to deduct union membership dues from their paychecks. The WDEA provision at issue in Thulen involves a restriction on employees’ ability to withdraw authorization for this payroll deduction. An employee may only withdraw authorization by giving written notice to the employer “during the 10 days following each anniversary date of their employment.” Id. at § 6, amending N.J. Rev. Stat. § 52:14-15.9e.
The main issue in Janus was the ability of public sector unions to collect “agency fees” from non-member employees. Unions might want to require non-members to pay a fee in order to support the union’s collective bargaining activities, since non-members are likely to benefit from negotiations alongside members. Some public employees object to these fees because they do not support political activities by the union. The Janus ruling held that requiring non-members to pay an agency fee violates their First Amendment rights.
The three plaintiffs in Thulen are employed by the Township of Lakewood, and are members of the American Federation of State, County and Municipal Employees (AFSCME). They object to the provision in § 6 of the WDEA that, as they describe it, prevents union members from withdrawing from the union for all but ten days out of each year. Citing Janus, the plaintiffs allege that this provision “unconstitutionally interferes with [their] First Amendment right to resign from and end financial support to a union at any time.” Thulen, complaint at 3. They allege civil rights violations under 42 U.S.C. § 1983, and seek injunctive and declaratory relief.
The Resnick Law Group’s team of knowledgeable and experienced employment attorneys advocate for the rights of workers in claims under state and federal law in New Jersey and New York. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation to see how we can assist you.
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Deadlocked Supreme Court Affirms Appellate Court Ruling on Public Sector Union Dues, The New Jersey Employment Law Firm Blog, June 10, 2016