My law partner, Gabe Jiran, talks today about whether it’s all that easy to change the terms of a collective bargaining agreement. Is it just as easy as a vote? Or does it require something more? The answer has implications for all employers.
With all of the talk about the financial difficulties faced by the government, I, and others in here, sometimes get the question of whether the State of Connecticut or other states might try to change the laws on collective bargaining or try to pass legislation to alter the terms of its existing collective bargaining agreements.
Other states have started down this road, but it is not that easy.
Recently, the Connecticut Attorney General was asked to opine on whether the General Assembly could statutorily change the contracts covering State employees to address the fiscal crisis. A link to the opinion is here.
The short answer is that the State could do so, such as by passing a statute that wage increases be delayed or eliminated in State contracts.
However, the United States Constitution imposes a pretty heavy burden on the State to justify any such changes.
The relevant factors are:
- the severity of the fiscal crisis;
- the nature and duration of the contractual changes;
- the extent that the State has attempted to implement other alternatives in the past;
- the extent to which the State has studied and made findings about the feasibility of other alternatives;
- whether these alternatives would be a less dramatic option;
- the extent to which the fiscal crisis existed or was foreseeable when the State entered into the existing contract; and
- the State’s representations during negotiations for the existing contract.
Based on cases utilizing some or all of these factors, the State would face an uphill battle if it wanted to change an existing contract.
For example, a federal appeals court struck down the State of New York’s plan to delay wage increases for employees because New York had alternatives such as raising taxes or shifting money around in its budget. In another New York case, the same court found that a $1 billion deficit was not a dire enough fiscal crisis to justify a delayed wage increase.
However, one case found that the City of Buffalo was able to impose a wage freeze when it was undeniable that Buffalo was in a fiscal emergency and that the wage freeze was a last resort after looking at other options.
In discussing the matters with others here, we expect that Connecticut and other states will continue to look for creative options to address their financial situations with employees.
However, it is doubtful that these options will involve changes to existing contracts without negotiation with the unions involved. In addition, any State attempts to change contracts in the private sector would be almost certain to fail.