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Second Circuit: Governor’s Layoffs of Only Union Personnel Subject to Strict Scrutiny

Posted in Class Actions, Labor Law & NRLB, Litigation

On Friday, the Second Circuit issued an important decision in the long-running battle between the state unions and the government about whether layoffs of only union personnel violated the First Amendment.

I’ve previously discussed the background of this case (and my very early involvement in it) in various posts.

The Second Circuit not only reversed the lower court’s decision that had previously held that Connecticut did not violate the First Amendment when it laid off union employees in 2003, but also held that summary judgment should have been granted to the unions instead. 

You can download the SEBAC v. Rowland decision here.  The decision reaffirms and significantly strengthens the First Amendment right to join and associate in unions and restricts what the government can do in response to unions that refuse to give concessions in response to budget constraints.

It is a remarkable decision because as the court acknowledges, it had “never [before] articulated a standard for determining whether, and under what circumstances, a public entity’s employment decisions violate this right to associate in unions.”

By elevating this right to, in essence, a fundamental right, it subjects the decisions to the highest level of review by the courts: strict scrutiny. 

Conditioning public employment on union membership, no less than on political association, inhibits protected association and interferes with government employees’ freedom to associate. It is therefore subject to the same strict scrutiny, and may be done only “in the most compelling circumstances. …

Given the well-established principle that union activity is protected by the First Amendment, and the applicability of the reasoning in the political patronage cases to union membership, we hold that [the Supreme Court]’s heightened scrutiny requirement applies to employment decisions based on union membership

The case was remanded to the District Court to determine the appropriate remedy for the violation, but rehiring laid-off union employees will no doubt be at the top of any wishlist.  The lower court is to fashion “equitable” relief, which differs from monetary relief, but gives the court some flexibility as to what will be appropriate here, particularly because the events that gave rise to this occurred over a decade ago.

In addition, the administration has changed political parties so it remains to be seen whether some sort of final compromise will be sought as well.

But as states and local governments look to cut costs, the Second Circuit’s decision here may limit the types of approaches a government can use to do so. If the “pain” is distributed among both union and management personnel, that may pass muster, but targeting unions alone for cuts (as the court suggests was done here) may not.