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January 8, 2020

First Amendment protections do not extend to agency fee payors in a collective bargaining unit established pursuant to the Taylor Law

The New York State Thruway Authority [Authority] initiated a layoff involving certain thruway employees, including individuals that were "agency fee payors" as permitted by Article 14 of the Civil Service Law, typically referred to as the Taylor Law.  Danny Donohue, as President of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and others [Plaintiffs] filed suit against the Authority alleging that the termination of union-represented employees violated the employees' First Amendment right of association. 

In the course of the litigation the Federal District Court, Southern District of New York had certified the following question to the United States Circuit Court of Appeals, Second Circuit, citing its decision in State Employees Bargaining Agent Coalition v. Rowland:*

Are 'union-represented individuals during the bargaining process' — consisting of both union members and agency fee shop payors [AFPs]** — a protected class, such that employment decisions based on employees' union representation during collective bargaining are subject to strict scrutiny?

The Circuit Court of Appeals, considering its decision in Rowland in which it ruled that union activity is protected by the First Amendment right to freedom of association and that heightened scrutiny applies to employment decisions that target an employee “based on union membership,” held that Rowland did not extend to AFPs represented by an employee organization for the purposes of the Taylor Law.

The court found that First Amendment protections applied to union members but did not extend to AFPs based on union representation alone, explaining "AFPs who affirmatively disassociated with a union by objecting to paying for a union's political and ideological projects but who continued to be represented by the union during collective bargaining could not claim that an adverse employment action interfered with their right to associate with the union. In extending Rowland to all AFPs purely because they were represented by a union in collective bargaining, the District Court went too far."

Accordingly, the Circuit Court vacate and remand the district court’s order as it applied to AFPs but affirm the District Court’s order as it applied to union members.

* See 718 F.3d 126.

**  In accordance with the Supreme Court's decision in Janus v. American Federation of State, County, and Municipal Employees Council 31, 138 S. Ct. 2448  a union may no longer collect any fee from an AFP absent the AFP's affirmative consent.

Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. Click on for more information.

The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

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