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September 20, 2019
Massachusetts Legislature Responds
Janus  Decision
Yesterday, the Massachusetts Legislature voted to override Governor Baker's veto of House Bill 3854, which responds to the U.S. Supreme Court's decision in Janus v. AFSCME. The Bill relieves unions representing public sector employees of certain obligations, increases their access to bargaining unit members, and creates a period during which an employee cannot revoke his or her agreement to pay dues or an agency service fee.
Specifically, the Bill allows unions to require non-dues paying members to pay for reasonable costs and fees, including arbitrator fees and related attorney's fees, for grievances and arbitrations, along with any proportional costs occurring prior to the arbitration being filed. Under current law, a union must represent an employee at no cost even if the employee does not pay dues or a voluntary agency service fee.
The Bill also enhances unions' ability to access employees. The Bill gives unions the right to:  
  • Meet with individual employees on the employer's premises during the workday to investigate and/or discuss grievances, workplace-related complaints and other workplace issues; 
  • Conduct worksite meetings during lunch breaks and 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 related to internal union matters; 
  • Meet with newly hired employees without charge to the pay or leave time of the employees for a minimum of 30 minutes within the first ten (10) calendar days after the date of hire, during new employee orientation or, if the employer does not have a new orientation, at individual or group meetings; 
  • Specific to public schools, school districts are required to notify the union of a hiring decision no later than ten (10) calendar days after the individual accepts the offer of employment and must provide the union with the employee's name; job title; worksite location; home address; work telephone number; home and personal cellular telephone numbers; date of hire; work email address; and personal email address, provided the provision of the personal cellular telephone, home number and personal email is subject to the maintenance of the information in the employer's files; 
  • Use public employer email systems for union-related matters, provided doing so does not create an unreasonable burden on network capability or system administration; and

  • Use government buildings and other facilities that are owned or leased by government entities to conduct meetings with members regarding collective bargaining negotiations, the administration of collective bargaining agreements, the administration of any investigation of grievances, other workplace related complaints and issues and internal union matters involving governance or business of the union.
The failure to comply with any of the above requirements will constitute an unfair labor practice for failing to bargain in good faith.
Last, the Bill revises the dues and fee payroll deduction statutes by consolidating them into a single statutory provision. Notably, the statute states that an authorization to make a deduction may be irrevocable for a period of one year after its anniversary and may only be revoked under the terms of the initial authorization signed by the employee. If no specific period is provided, 60 days' notice is required for the revocation to be effective. The constitutionality of a similar provision is being challenged as a violation of the First Amendment in other jurisdictions. If possible, it is, therefore, wise to work with the unions that represent your employees to avoid the inclusion of such revocation periods until this issue is fully litigated.
As the Bill does not contain an emergency preamble, it will go into effect in 90 calendar days.
Please contact any member of our team if you have any questions regarding this or any other labor and employment matters.

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Mirick O'Connell is a full-service law firm with offices in Worcester, Westborough and Boston, Massachusetts.  The Firm's principal practice groups include Business;
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