As reported by NJ.com, Governor Phil Murphy recently signed a bill strengthening the rights of public worker unions, which could face a big threat from a looming decision by the United States Supreme Court. The bill, A3686, the Workplace Democracy Enhancement Act, gives public labor unions in New Jersey greater access to their members and penalizes public employers that encourage people to resign their union membership. “As a strong advocate for organized labor, I recognize the myriad benefits of employee unionization, as well as the continued challenges unions face in maintaining and growing their membership,” Murphy said in a statement.

In the Janus v. AFSCME case before the Supreme Court, public labor unions nationwide stand to lose the right to collect agency fees workers pay in lieu of compulsory dues if they do not want to pay the full freight, which includes money for political activities. Agency fees for non-members cannot exceed 85 percent of the full membership fee and are meant to support the unions’ nonpartisan activities, like contract negotiations. The plaintiff in Janus, an employee with the Illinois Department of Healthcare and Human Services, argues that it is impossible to distinguish between unions’ political and nonpartisan activities and being forced to pay agency fees violates the First Amendment.

The Supreme Court deadlocked on a nearly identical case in 2016 following the death of Justice Antonin Scalia, but the addition of Justice Neil Gorsuch is expected to the tip the Court in favor of the Plaintiff. A ruling against agency fees would make it even more important for labor unions to recruit and retain members, who will have a choice between paying full member dues or none at all.

New Jersey has about 344,000 public union members. The bill allows labor representatives to meet with members in their workplace and during work hours to investigate workplace complaints, to conduct on-site meeting with members during breaks, and to meet with newly hired employees. Public employers, in turn, are required to furnish the organizations with contact information for all covered employees and to allow the group to use the employers’ email to reach out to members. Additionally, if a public employer is found to have encouraged employees to shed their union membership or discouraged them from joining or forming a union, it must reimburse the union for those lost dues.  The bill would also extend union membership to the majority of part-time government employees.

In April, the State Assemble passed the bill 50-22, with one abstention and it went 26-9 in the State Senate. Supporters say the law codifies what are already common practices in some places, while opponents have called it premature, unnecessary and overreaching.

As you can see, the impact of an adverse holding in Janus v. AFSCME can potentially have an enormous impact upon public labor unions.  As such, this bill anticipates such an impact and proactively attempts to address the same.  Consequently, please continue to check this blog periodically to ascertain updates regarding the Janus case and the resulting impact upon organized labor.

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DONALD C. BARBATI, JR.

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault.  In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.