Two New Jersey teachers have filed a lawsuit challenging the Workplace Democracy Enhancement Act. The complaint against Gov. Phil Murphy, the New Jersey Education Association (NJEA), and Township of Ocean Education Association alleges that the law violates the teachers’ First Amendment rights in light of the U.S. Supreme Court’s decision in Janus v. AFSCME.
Janus v. AFSCME
In Janus, a divided Court held that public-sector “agency shop” arrangements run afoul of the First Amendment. In so doing the Court expressly overruled its prior decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), in which the Court held that the First Amendment did not prohibit government employers from requiring non-union public employees to pay their “fair share” of dues for collective bargaining, contract administration, and grievance adjustment, so long as those fees were not used to fund “nonchargeable” expenses toward “ideological purposes unrelated to collective bargaining.”
In overruling Abood, a 5-4 majority of the Supreme Court concluded the long-standing precedent was inconsistent with First Amendment principles. Writing on behalf of the majority, Justice Alito heldthat the State of Illinois’ extraction of agency fees from nonconsenting public-sector employees violates the First Amendment.
Janus represents a sea change in how the Court applies the First Amendment. In light of the decision, public unions cannot make any deductions from nonmembers’ wages unless workers “opt-in” to such fees through affirmative assent.
Workplace Democracy Enhancement Act
In anticipation of the Supreme Court’s ruling in Janusthe Legislature passed the New Jersey Workforce Democracy Enhancement Act, which Governor Murphy signed into law in May 2018. The goal of the new law is to ensure public unions greater access to the employees they represent, as well as new and prospective members.
Among other provisions, the Workplace Democracy Actgrants unions the right to meet with and obtain the contact information of new hires. Unions may also use public employer email systems to communicate and government buildings to meet with their members, so long as the communications involve collective bargaining agreements, grievances and other workplace-related complaints and issues.
Of particular relevance to the New Jersey teachers’ suit, the Workforce Democracy Enhancement Act allows for the authorization of payroll deductions for union dues and fees. A provision of the new law specifically provides that an employee may revoke such an authorization by providing written notice to their public employer during the 10 days following each anniversary date of the employee’s employment. The public employer is then required to inform the union of the withdrawal, with the withdrawal taking effect on the 30th day after the anniversary date.
Lawsuit Challenging Workplace Democracy Enhancement Act
When Gov. Murphy signed the Workplace Democracy Enhancement Act (the “Act”), he acknowledged that the Janusdecision could impact its enforcement. “In the event that appropriate clarifying amendments are necessary following the Supreme Court’s decision, I will work closely with the sponsors to enact any required changes,” Murphy said at the time.
The provision modifying procedures for an employee to withdraw authorization for payroll deduction of fees to employee unions is now the subject of ongoing lawsuits.In the latest suit, Fischer et al. v. New Jersey Education Association et al., Ocean Township teachers Susan Fischer and Jeanette Speck (collectively, the “Plaintiffs”) argue that the unions are violating the First Amendment by collecting dues from employees who opted out of the payroll deductions.
According to the complaint, in July 2018, the Plaintiffs notified the NJEA and the Township of Ocean Board of Education that they resigned their union membership, revoked their dues deduction authorizations, and did not consent to further deduction of union dues from their wages. In August 2018, the Township of Ocean Board of Education informed Fischer that teachers can only revoke their dues deduction authorization pursuant to the mandates of the Act. Accordingly, the Township would not honor teacher notices of revocation not received during the ten days following the anniversary date of their employment.
The ten day period following Plaintiffs’ anniversary of employment was on or about September 1 to 10, 2018. On or about September 4, 2018, the Plaintiffs again notified the Township of Ocean Board of Education and the NJEA that they did not consent to paying union dues or having union dues deducted from their wages. Under the Act, the Plaintiffs’ second revocation request could not be honored until the “30th day after the anniversary date of employment.” In September 2018, the Township of Ocean Board of Education deducted union dues from the Plaintiffs’ wages and TOEA / NJEA collected those dues. Based on the foregoing, the Plaintiffs maintain that they have “had union dues seized from them without their consent.”
Plaintiffs argue that “[t]he State of New Jersey is defying Janusby maintaining and enforcing a law that compels public employees who previously signed dues deduction authorizations to pay union dues as a condition of their employment unless and until the employee provides written notice of revocation during an annual ten (10) day window period.” “In other words, New Jersey law prohibits many employees from exercising their First Amendment rights under Janus for 355-56 days of the year.”
The Plaintiffs seek reimbursement of the union dues. They further seek class-action status. We will continue to track the status of Fischer et al. v. New Jersey Education Association et al.and post updates as they become available.
For more information about the case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.