New law changes workplace rules for public employers and unions

With nearly unanimous votes on Sept. 19, the Legislature overrode Gov. Charlie Baker’s veto of a bill that addresses the 2018 U.S. Supreme Court decision in Janus v. AFSCME.

The Janus decision barred automatic payroll deductions of union agency fees from public sector employees who decline union membership. Agency fees cover the direct costs associated with collective bargaining, contract administration, and representing employees in grievances and arbitrations.

Attorney General Maura Healey issued guidelines last year in the wake of Janus clarifying that public employees who elect not to join a union must clearly and affirmatively consent to the deduction of agency fees from their wages. This prompted municipalities to require written consent to have these fees deducted. Massachusetts legislators promised to pass a law affording additional rights to public sector union employees in response to the Janus decision.

The new state law, which will take effect in 90 calendar days from its passage, or about Dec. 18, has important implications for municipal employees and employers, including new rules for the workplace.

The law addresses the “free-rider” issue of non-union members gaining representation benefits from their union without paying agency fees by allowing unions to charge nonmembers for the reasonable costs and fees, including arbitrator fees and related attorney’s fees, for grievance or arbitration procedures arising under a collective bargaining agreement. This includes the payment of anticipated proportional costs prior to a grievance or arbitration hearing, at the union’s discretion.

The law also gives unions more access to employees by establishing the following rights:
• Worksite meetings with individual employees during the workday to investigate and discuss grievances, workplace-related complaints and other workplace issues
• Worksite meetings during lunch breaks, other non-work breaks and before and after the workday to discuss workplace issues, collective bargaining negotiations, the administration of collective bargaining agreements, and other matters involving union governance or business
• Worksite meetings with newly hired employees within 10 calendar days after the date of hire during orientation, or another individual or group meeting if the employer does not conduct orientation, and for a minimum of 30 minutes without charge to the employee’s pay or leave time
• Use of the employer’s email system to communicate union-related business to bargaining unit members, if the use does not create an unreasonable burden on network capability or system administration
• Use of government buildings and facilities to conduct meetings with bargaining unit members regarding negotiations, the administration of collective bargaining agreements, the investigation of grievances, other workplace-related complaints, and internal union matters involving union governance or business, subject to the employer’s charges for maintenance, security and other costs related to the building’s use

Public employers must also provide employee contact information to the union after an employee is hired, including name, job title, worksite location, home address, work telephone number, home and personal cellular telephone numbers on file, date of hire, and work and personal email addresses on file.

For school employees, the employer must notify the union within 10 calendar days after a prospective employee accepts an employment offer, and provide employee contact information to the union within that time frame.

If a collective bargaining agreement provides greater rights, the new law does not supersede them. Employers who fail to comply with the law’s provisions may be charged with an unfair labor practice.

The law creates a local option for municipalities with respect to a section governing the period of time in which an employee may revoke an agreement to pay dues or an agency service fee. If a city or town votes to adopt the section, a payroll deduction authorization may be irrevocable for a period of one year after the anniversary of the authorization, and may only be revoked under the terms of the original authorization. Once a union receives a revocation request, the union treasurer must notify the office responsible for payroll deductions for the employer within 15 calendar days. If no specific period is included in the original authorization, an employee must provide 60 days’ notice of revocation and file a copy of the notice with the union treasurer for the revocation to be effective.

Janus legislation has spanned two legislative sessions in Massachusetts, but the law’s passage may not mark the end of the debate. Already, outside groups are reportedly looking for plaintiffs to sue on the grounds that the law violates the U.S. Supreme Court’s Janus decision, and lawsuits are already underway in other jurisdictions with respect to language governing the revocation of payroll deduction authorizations.