May 19, 2023
On May 9, 2023, Florida Governor Ron DeSantis signed SB 256 into law. SB 256 has many implications for Florida’s public sector unions, public employees, and public employers. Specifically, SB 256 imposes certain prohibitions on public employers with an organized workforce, prohibitions which such public employers must comply with beginning July 1, 2023. Significantly, SB 256 does not apply to law enforcement or firefighter bargaining units. There is also an exception allowing Florida’s Public Employees Relations Commission (PERC) to waive certain SB 256 requirements for mass transit employees, but only as necessary for a public employer to comply with 49 U.S.C. § 5333(b) to avoid losing its Federal Transit Administration funding.
Effective July 1, 2023, SB 256 will prohibit public employers from deducting union dues and uniform assessments from bargaining unit members. Such members will need to make such payments directly to their union. Public employers should ensure that they have plans in place to cease union related deductions on July 1, 2023. Deductions of such dues and assessments after July 1, 2023, may also implicate the Fair Labor Standards Act (FLSA), as impermissible deductions may violate the FLSA.
Public employers also gain certain rights under SB 256. Specifically, SB 256 requires unions to submit an annual registration renewal application which must include an annual “audited financial statement,” which unions must also provide to their members. SB 256 also requires that the renewal application contain certain information regarding each bargaining unit represented by the union, including the number of bargaining unit members, the number of members who submitted signed membership authorization forms without revoking same, the number of dues paying members, and the number of members not paying dues. The foregoing information must be submitted with documentation from an independent certified public accountant which verifies the submitted information. Additionally, a union must provide a public employer with the union’s renewal application on the same day that the union submits its renewal application to PERC. Significantly, SB 256 provides a public employer with the right to challenge a renewal application by petitioning PERC if the public employer believes a renewal application is inaccurate. If PERC determines that an application is inaccurate or otherwise fails to comply with SB 256, PERC is required to revoke the union’s registration and certification.
Effective October 1, 2023, SB 256 will implement a hurdle for unions with respect to recertification requirements when dues paying membership falls below 60 percent. Under SB 256, when a union’s renewal application reveals that, within at least 30 days of the renewal, less than 60 percent of the union’s members are paying dues, the union must petition PERC for recertification within 1 month of the union submitting its renewal application. Accordingly, public employers can expect increased union activity as unions seek to increase the percentage of dues paying members prior to post-October 1, 2023, renewal submissions.
It is important to note that several Florida public employee unions representing certain municipal employees in South Florida immediately filed a lawsuit in state court challenging the constitutionality of SB 256 under Florida’s Constitution (a teachers’ union filed a separate lawsuit in federal court claiming SB 256 violates the U.S. Constitution) and additional lawsuits are expected. Public employers should nonetheless prepare to implement SB 256 unless a court rules otherwise. Additionally, PERC is expected to issue new rules in the near future which further implement SB 256. Accordingly, public employers should remain watchful for any additional SB 256 related rules and/or guidance from PERC.
As SB 256 will only apply to certain bargaining units, public employers with organized workforces should consult with their labor counsel in order to determine the extent of SB 256’s potential impact on their workplace and payroll practices.
Contact GrayRobinson Attorney Matthew Bowles or a member of the Labor and Employment Section.