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:

  1. the severity of the fiscal crisis;
  2. the nature and duration of the contractual changes;
  3. the extent that the State has attempted to implement other alternatives in the past;
  4. the extent to which the State has studied and made findings about the feasibility of other alternatives;
  5. whether these alternatives would be a less dramatic option;
  6. the extent to which the fiscal crisis existed or was foreseeable when the State entered into the existing contract; and
  7. 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.

With my trial now over (and post-trial motions now beginning), it’s time finally to catch up on some of the posts I’ve flagged over the last few weeks, but haven’t had a chance to remark on.  Over the next week or two, I’ll be commenting on other developments. As you might expect after coming off a nearly-month long trial, there’s quite a backlog of work and issues to get to so with a little patience, I hope you’ll be rewarded.  Here’s the first batch of notable posts:

  • Just when you think things can’t get any weirder, the National Law Journal publishes its annual Top Ten list of wackiest employment law cases.  My favotite, Number 4 – the employee had "Jesus-guy syndrome."  (H/T Ohio Employer’s Law Blog)
  • Wait a Second Blog reports this week on a notable Second Circuit case that held for the first time that employment discrimination laws are violated when a white employee is fired for being married to a black woman. The case is Holcomb v. Iona College, decided on April 1.
  • The Laconic Law Blog reports on new opinion letters by the U.S. Department of Labor regarding Fair Labor Standards Act.  The opinions are on fairly technical provisions but they may help clarify issues for public employers, law enforcement, and purchasing agents.
  • With the NCAA tournament wrapping up (and my bracket entry down in flames), the Nolo’s Employment Law Blog reports on the effect of March Madness on the workplace.  I tend to think its a bit overstated.  Is there interest? Yes. But American Idol probably has more buzz in the office (and is much more watched) but there aren’t lots of articles about that show.
  • And Evil HR Lady has the advice and story of an employer who received the non-resignation resignation letter.  You have to read it to believe it. 

Many thanks to all the guest bloggers over the last few weeks (I have one more post coming up this week).  It’s only appropriate to hum a tune about being welcomed back….