On June 4, 2021, Governor Lamont signed into law Public Act 21-25, which is effective October 1, 2021. This Act, entitled “An Act Concerning Access to Certain Public Employees by The Exclusive Bargaining Representative of a Public Employer Bargaining Unit,” sets forth new obligations on public employers in Connecticut regarding union access to their employees as well as payroll deductions. In addition to imposing new requirements on public employers, the Act leaves open numerous questions that will have to be addressed by the courts, the State Board of Labor Relations, or future legislative action. The highlights of the Act follow:
NEW EMPLOYEE INFORMATION
- Public employers must provide unions with a newly hired employee’s (1) name; (2) job title, department, and work location; (3) work phone number; and (4) home address.
- The information has to be provided in an editable digital file format, and if possible, in a format agreed to by the union. If possible, the employer must also provide the information with real-time electronic transmission of new hire data, but no later than 10 days after the employee was hired or the first pay period of the month after the employee was hired, whichever is earlier.
Open Question: As written, the Act does not limit these requirements to the information of employees in a particular bargaining unit represented by a particular union, or to bargaining unit employees at all. Theoretically, a public employer must notify all of its unions of any new hires. It is unclear if this is simply unclear drafting or an effort to give unions an opportunity to demand that a new hire be placed in their bargaining units.
CURRENT EMPLOYEE INFORMATION
- Beginning on January 1, 2022, public employers are required to provide unions with each bargaining unit employee’s (1) name; (2) job title; (3) worksite location; (4) work phone number; (5) hire date; (6) work email address; and (7) home address.
Open Question: The Act does not reconcile this requirement with Conn. Gen. Stat. Section 1-217, which prohibits the disclosure under FOIA of certain public employees’ home addresses. Consequently, public employers may have to provide the home addresses of police and fire personnel, court employees, or employees of certain state agencies and divisions under the new law despite being barred from doing so under FOIA.
- The employer must provide the information in an editable digital file format agreed to by the union (1) every 120 days, unless an agreement between the parties requires more frequent or more detailed lists, and (2) in addition to any other employee information to which a union is entitled. If authorized by the employee via written authorization provided to the union, the information above must also include the employee’s home telephone number, personal cell phone number, and personal email address if on file with the public employer.
Open Question: The Act does not explain how this requirement might be implemented by employers. There is no provision for an employer to verify that an employee provided such written authorization to the union, and no protection for an employer who provides this information in reliance on a union’s representations.
- An employee may revoke the authorization at any time. The authorization or revocation must be provided to the union.
Open Question: The Act does not explain how the union must convey such a revocation to the employer and does not provide for the employer directly learning of the revocation from an employee. It is unclear whether the employer would face ramifications for providing personal contact information following a revocation.
ACCESS TO NEW EMPLOYEES DURING ORIENTATION
- Unions must be given access to new employee orientations.
Open Question: The scope of this requirement is unclear. As with the requirements about providing the information above, the Act does not expressly limit this provision to giving unions access only to orientations for employees they represent.
- In general, the employer must give unions written or electronic notice about an orientation at least 10 days in advance.
- The parties determine the structure, time, and manner of the union’s access to an orientation through mutual agreement.
- The parties must negotiate these issues upon either party’s request.
- Failure to reach an agreement on the issues results in compulsory interest arbitration under the Act. If the parties fail to reach an agreement within 45 days after their first meeting, or 60 days after the request to negotiate, whichever is earlier, the Act allows either party to demand compulsory interest arbitration.
- If a party makes a demand for arbitration, the procedures for interest arbitration under existing public sector labor laws apply. The arbitrator must consider the following factors (which are different that than the current factors used in interest arbitration over collective bargaining impasse): 1) the union’s ability to communicate with the employees it represents; 2) the union’s legal obligations to the employees; 3) applicable state, federal, and local laws; 4) stipulations by the parties; 5) the public’s interest and welfare and the financial condition and day-to-day operations of similarly situated public agencies; 6) the structure, time, and manner of access to new employee orientations in comparable public employers, including access provisions in other memoranda of understanding or collective bargaining agreements; 7) the union’s need to meaningfully communicate through cost-effective and efficient means with the employees it represents, and 8) any other factors that are normally or traditionally considered when establishing how a union may access new employee orientations.
Open Question: It is unclear how arbitrators will apply these factors and whether they may concern practical considerations. These factors do not include an employer’s concerns or obligations regarding safety and security of its premises. Schools, police departments, prisons, and many other public workplaces that currently restrict access to their facilities may not be able to enforce their restrictions for union representatives. In addition, it is unclear if a public employer needs to postpone new hire orientation pending the outcome of any interest arbitration.
ACCESS TO FACILITIES, SYSTEMS, AND EMPLOYEES
- Public employers must provide unions with access to the public employees that they represent, including the right to:
- Meet with individual employees on the employer’s premises during workdays to investigate and discuss grievances, workplace-related complaints, and other workplace issues;
- Conduct worksite meetings on the employer’s premises before and after the workday and during meal periods and other paid or unpaid breaks; and
- Meet with a newly hired employee within the bargaining unit, without charge to the employee’s pay or leave time, for between 30 and 120 minutes within 30 calendar days after the employee is hired, during orientations, or if the employer does not hold orientations, at individual or group meetings.
- Unions have the right to use public employers’ email systems to communicate with bargaining unit members about collective bargaining, administering collective bargaining agreements, investigating grievances, other workplace related complaints and issues, and internal union matters involving union governance or business.
- Unions have the right to use state and municipal government-owned or -leased buildings and facilities to conduct meetings with bargaining unit members. Unions may hold the meetings (1) at a reasonable time and place, as long as they do not interfere with the public employer’s operations, and (2) without undue interference. Unions may also place reasonable restrictions on the conduct of someone attending the meetings.
- The Act permits public employees and retirees to authorize deductions from their salaries, wages, or retirement benefits to pay dues in or for a service, program, or committee that is provided or sponsored by a union.
- Such authorizations will be provided directly to the union, not to the employer.
- Public employers are required to honor any deduction authorizations that a union creates or adopts, as long as they are in a form that satisfies the state’s Uniform Electronic Transactions Act, including electronic and voice authorizations that meet the act’s electronic signature requirements.
Open Question: The Act does not address the interaction of these requirements with Conn. Gen. Stat. 31-71e, which prohibits an employer from payroll deductions except in narrow circumstances, including when the employer itself has a written authorization form.
- Public employers that provide for the administration of payroll deductions authorized by employees for unions must rely on a union’s certification that it has and will maintain authorizations, signed by the individuals from whose pay the deductions will be made. A union does not have to provide copies of the authorizations to the public employer unless a dispute arises about their existence or terms. The union must indemnify the public employer for any claims an employee makes about deductions that rely on the union’s certification. Public employers may not address employee requests to cancel or change their deductions and must instead direct such requests to the appropriate union.
- Similarly, the public employer must rely on information provided by a union regarding whether deductions for the union were properly canceled or changed. The union must indemnify the public employer for any claims made by the employee for deductions made in reliance on such information.
- Deductions may be revoked only under the terms of the employee’s written authorization.
Open Question: The law does not set parameters for the terms of these written authorizations. Presumably, the authorizations will be drafted by the unions, thus requiring employees to comply with any restrictions a union imposes. Litigation has occurred in other states by employees challenging the terms of union authorizations, but courts generally regard the authorizations as voluntary agreements signed by the employees and have upheld them accordingly.
- The Act limits a union’s or public employer’s liability for improper deductions to the amounts improperly deducted. The Act specifically prohibits a public agency or court from awarding greater damages or penalties.
- The Act makes a public employer liable to a union for the full amount of dues that the employer fails to remit to the union in accordance with the requirements above. The Act also deems such a failure by an employer to be an “unfair labor practice.”
- Disputes between an employee and a union over a deduction authorization’s existence, validity, or revocation must be addressed through a prohibited practice proceeding before the State Board of Labor Relations.
PROHIBITED LABOR PRACTICES
The Act makes it a prohibited labor practice for a public employer to do any of the following:
- Encourage an employee to resign or decline membership in a union,
- Encourage an employee to revoke authorization for a payroll deduction of dues to a union,
- Knowingly aid such an effort by another entity, or
- Allow an entity to use the employer’s email system to discourage membership in a union or discourage authorization of payroll deductions for the union’s dues.
Open Question: The Act does not address an employer’s obligations if a union that represents one group of employees, and therefore has access to the employer’s email system, uses that access to attempt to communicate with other employees represented by another union for any prohibited purpose as identified above.