Florida: New Law Prohibits Certain Public Employers from Deducting Union Dues from Employee Paychecks, Spurring Immediate Union Lawsuit

By Allen Norton & Blue, P.A.

May 15, 2023

On May 9, 2023, Florida Governor Ron DeSantis signed Senate Bill 256 (Public Law 2023-35), which enacted far-reaching changes to Florida public sector labor relations law. The changes were vehemently opposed by unions who, unsurprisingly, immediately filed lawsuits in both state and federal courts seeking injunctions to block the new law.

Prohibition on Dues Deduction.

Under current Florida law, public employers are required to deduct union dues from the paychecks of consenting employees. All that is required to trigger this obligation is for the union to make a written request to the employer and to provide the employer with authorization forms signed by the employee. In this respect, public unions in Florida have become accustomed to having their dues collected by the employer as part of the employer’s normal payroll function. With this new law, that will change on July 1, 2023.

Effective on that date, Florida law will prohibit public employers from deducting union dues and assessments from employee paychecks. Unions will be solely responsible for collecting their dues and assessments from employees directly. Moreover, when collecting employee authorizations to collect union dues the new law also requires unions to highlight Florida’s status as a right-to-work state, the employee’s right to decline union membership (and associated union dues), and the employee’s unfettered right to revoke membership at any time for any reason.

It should be emphasized that this new law does not apply to unions representing law enforcement officers, correctional officers, or firefighters. For those employees, employers remain required to deduct union dues on behalf of the union for any employee who authorizes the deduction.

Changes to Annual Union Registration Requirements and Recertification Requirement.

In addition to the change to the dues deduction obligation, Senate Bill 256 also imposes more onerous requirements on the union’s annual registration process. Under current law, unions are already required to register with the Public Employees Relations Commission and to renew that registration annually. Under the new law, effective with any registration application on or after October 1, 2023, each union is required to disclose how many bargaining unit employees are dues-paying members. More significantly, the law provides that, for any bargaining unit in which less than 60% of the bargaining unit are dues-paying members, the union must petition for a recertification election within 30 days or be decertified. Assuming the union petitions for recertification, the union will need to receive a majority of the votes in the ensuing election to remain the employees’ certified representative. The practical effect of this provision will likely be that unions with only minimal current employee support – many of which may have been initially certified years ago – will be at significant risk of being decertified.

As with the changes to dues deductions, these changes to the annual registration requirements and the requirement for recertification elections do not apply to unions representing law enforcement officers, correctional officers, or firefighters.

Unions File Legal Challenges.

With the ink barely dry on the Governor’s signature, several unions (including the Florida Education Association, the United Faculty of Florida, and AFSCME) filed lawsuits seeking injunctions to block the new law. The unions are asserting that the law violates the First Amendment and Fourteenth Amendment of the United States Constitution, as well as the right collectively bargain under the Florida Constitution and the Florida Constitution’s prohibition on the impairment of contracts. It is anticipated that these courts will hold injunction hearings in the coming weeks. Until then, employers should plan now for the law’s application.

What Employers Should Do Now.

Assuming the court does not block the implementation of the law, as to dues deductions, employers without pending collective bargaining agreements should plan now to implement payroll changes that cease dues deductions (except for public safety unions) as of the last pay period in June 2023. For employers who currently have a collective bargaining agreement requiring dues deductions, the employer should undertake a legal review of the specific language of that contract to determine and weigh the risks of ceasing dues deductions. To that end, the recently-filed lawsuit alleges that the law is unconstitutional as applied to existing contractual obligations. The specific language of existing collective bargaining agreements (particularly as to any dues deduction requirements, prevailing law language, and savings clauses) could affect the risks and analysis. In any event, we recommend that each employer advise affected unions in writing of its intent with respect to ceasing union dues deductions.

Additionally, employers would be wise to review the current percentage of bargaining unit employees who are having union dues deducted from their paychecks. For bargaining units in which dues-paying members are near or below the 60% level, there is a significant probability that a recertification union election will be ordered when the union seeks to renew its annual registration. If an election is held, the public employer is permitted to engage its employees to ensure that they are fully knowledgeable regarding the pros and cons of their vote for or against continued representation by the union. Moreover, actions you take in the near future could prove important in a subsequent recertification election. Care must be taken, however, not to run afoul of Florida’s unfair labor practice prohibition.

For 50 years, Allen Norton & Blue has specialized in labor and employment matters representing public employers. We are uniquely experienced in handling public sector labor issues, including those presented by this new law. If you would like us to assist in preparing communications to your unions regarding upcoming dues deduction changes, to review your current collective bargaining agreement to assess the risks of ceasing dues deductions during the life of the agreement, to develop a plan and strategy for an anticipated upcoming recertification election, or to address any other questions or concerns regarding Senate Bill 256, we encourage you to reach out to your ANB attorney.

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