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Janus Revisited: A Discussion of the Far-Reaching Implications for Public Sector - and Perhaps Even Private Sector - Unions and Employers


Level: Intermediate
Runtime: 64 minutes
Recorded Date: September 29, 2020
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Agenda

  • Decisions regarding damages for pre-Janus conduct
  • Decisions impacting maintenance of membership provisions
  • Would a logical extension of Janus prohibit state bar fees?
  • What’s happening at the bargaining table?
  • What's happening at the state legislatures?
  • What has been the continued fallout from Janus and what challenges does it present for union representation?
Runtime: 1 hour, 4 minutes
Recorded: September 29, 2020

Description

The 5-4 ruling of the United States Supreme Court in 2018 continues to have far-reaching implications for public (and perhaps even private) sector union membership, and thus dues revenue, and has spawned considerable litigation on several fronts, including recoupment of union dues payments as damages, maintenance of membership clauses, voiding existing contract clauses, exclusivity, and attempts to expand the majority's Janus reasoning to other areas. In order to lessen the impact of the Janus decision, several state legislatures have enacted laws anticipating or responding to this ruling. Other states are considering such legislation given the great uncertainty over the impact of the Court's decision. Amidst this turmoil and uncertainty, labor unions are attempting to defend themselves and maintain or increase union membership through innovative new bargaining approaches, legislative initiatives, and creative product development and packaging. Labor and employment lawyers from both sides of the table will benefit from this seminar presenting the challenges and approaches that have flowed from the Janus decision.

Join our panel of experts as they discuss the ramifications of the 2018 decision in Janus that undid 41 years of precedent in ruling that "fair share" clauses in public sector union contracts violate non-member payers' First Amendment Constitutional rights.

This program was recorded on September 29th, 2020.

Provided By

American Bar Association

Panelists

Gregg Adam, Esq.

Founding Partner
Messing Adam & Jasmine LLP

Before starting Messing Adam & Jasmine LLP with his partners Gary Messing and Jason Jasmine in 2015, Gregg was a partner with the San Francisco office of Carroll Burdick & McDonough LLP in the Public Sector Labor Group. His career is predominantly devoted to working with unions that represent public sector and public safety employees.

Gregg was selected by Daily Journal as one of the Top 20 Municipal Lawyers in California in 2013 and as one of California’s leading Labor & Employment Lawyers in 2014. Gregg has enjoyed Northern California Super Lawyer status since 2014, a rating conferred through peer recognition and professional achievement.

Gregg has negotiated collective bargaining agreements for association ranging in size from a few dozen to 30,000+, under multiple collective bargaining laws at both the state and local level. He has represented public safety officers, firefighters, supervisors, teachers, engineers, architects, and managers. Gregg brings a “win-win” philosophy to the bargaining table and a problem-solving energy to reaching the best results for his clients.

Gregg has argued three times in the California Supreme Court since 2013: in Cal Fire Local 2881 v. California Public Employees’ Retirement System, involving public employee retirement law; City of Los Angeles v. Superior Court, involving City Charter rights in a fiscal emergency; and Stoetzl v. California Department of Human Resources, involving state and federal wage and hour rights for state employees. He has another public employee retirement law case, Marin Association of Public Employees v. Marin County Employees Retirement Association, currently pending before the Court.

Gregg has also appeared several times in the United States Supreme Court, including in Brown v. Plata involving a Three Judge panel overseeing the State of California’s prison overcrowding crisis, and in Harris v. Quinn, Friedrichs v. California Teachers’ Association, and Janus v. AFSCME, all of which involved public employee union fair share fees. In Janus, Gregg spearheaded an amicus curiae brief on behalf of approximately half a million public safety employees nationwide.

Gregg has expertise in and has spoken and written about Public Employee Retirement Laws (including the Public Employees’ Pension Reform Act of 2013), Meyers-Milias-Brown Act, Ralph C. Dills Act, Public Safety Officers’ Procedural Bill of Rights Act, California Excluded Employees’ Bill of Rights Act, Firefighters Procedural Bill of Rights Act, and the Trial Court Employment Protection & Governance Act.

Gregg is a regular commentator on public employee issues and presents annually at the American Bar Association’s State & Local Collective Bargaining Subsection conference.

Martin H. Malin

Professor & Director, Institute for Law & The Workplace
Chicago-Kent College of Law, Illinois Institute of Technology

Martin H. Malin is co-director of the Institute for Law and the Workplace and teaches Labor Law, Employment Discrimination, Public Sector Employees, ADR in the Workplace, and Contracts. He received his B.A. from Michigan State University's James Madison College and his J.D. from George Washington University, where he was an editor of the law review and elected to the Order of the Coif. He joined the Chicago-Kent faculty in 1980 after serving as law clerk to United States District Judge Robert E. DeMascio in Detroit and on the faculty of Ohio State University.

Malin is a former national chair of the Labor Relations and Employment Law Section of the Association of American Law Schools, a former Secretary of the ABA Section on Labor and Employment Law, a former member of the Executive Committee of The Labor Law Group, and a former member of the Board of Governors and vice president of the National Academy of Arbitrators and a former member of the Board of Governors of the College of Labor and Employment Lawyers. During 1984 and 1985, Malin served as consultant to the Illinois State, Local and Educational Labor Relations Boards and drafted the boards' regulations implementing the Illinois Public Labor Relations Act and the Illinois Educational Labor Relations Act. From 2004 to 2008, he served as reporter to the Neutrality Project of the Association of Labor Relations Agencies, which produced a mini-treatise on labor board and mediation agency impartiality. In October 2009, President Barack Obama appointed Malin as a member of the Federal Service Impasses Panel, which resolves impasses in collective bargaining between federal agencies and unions that represent their employees. Obama reappointed Malin in 2014. He served until May 2017 when he and the other Obama appointees were removed by President Trump. In 2016, the ABA presented Malin with the Arvid Anderson Award for lifetime contributions to public sector labor law.

Malin has written extensively on all aspects of labor and employment law. He has published more than 80 articles and seven books, including Public Sector Employment (West 2004, 3rd ed. 2016), the leading casebook on the law governing public employees, and Labor Law in the Contemporary Workplace (West 2009, 3rd ed. 2019), a leading casebook on labor law. He ranks in the top 10 percent of authors in the Social Science Research Network database in terms of downloads of his work.

Roxana M. Underwood

Partner
Clark Baird Smith, LLP

Roxana Underwood is a Partner, representing employers in traditional labor and employment law matters. Her labor relations experience includes workplace counseling, negotiating collective bargaining agreements, litigating grievance and interest arbitration matters, and handling unfair labor practice and union representation matters before the National Labor Relations Board, the Illinois Educational Labor Relations Board, and the Illinois Labor Relations Board.

Roxana also counsels and defends employers with non-union workplace issues. She advises and represents clients in matters arising under Title VII of the Civil Rights Act, the ADEA, the ADA, the FMLA, the Illinois Human Rights Act, USERRA, the FLSA, as well as under the Administrative Review Act, among others. Roxana is also regularly called upon to conduct neutral workplace investigations on behalf of employers in various industries, as well as FLSA related wage and hour audits. In addition, Roxana conducts workplace training programs for employers, including prevention of workplace harassment, discrimination, and retaliation, as well as personnel policy and collective bargaining administration training.

Roxana is an active member of the American Bar Association’s Committee on State and Local Government Bargaining and Employment Law. She serves as the Management Co-Chair of the Programs Committee and also regularly authors reports on constitutional due process developments in the public sector. Roxana is a contributing editor to The Developing Labor Law (BNA) and to the Illinois Institute for Continuing Legal Education chapter on Employment Discrimination and Sexual Harassment and Discrimination. She has also authored a chapter on the Fourth and Fourteenth Amendments of the U.S. Constitution in the Municipal Law Deskbook published by the American Bar Association.

Roxana has been selected to the Illinois Rising Stars list consecutively from 2017 through 2020, which recognizes no more than 2.5 percent of the attorneys in each state. Roxana has also been selected by her Leading Lawyer peers as a "Emerging Lawyer" in the categories of Employment Law (Management) and Labor Law (Management) from 2018 through 2020. This distinction has been earned by fewer than 2 percent of all lawyers licensed to practice law in Illinois.

Roxana is also an active member of the Executive Board of the Ravinia Associates. She has just begun her two-year term as the Music Matters Co-Chair.

York Chang

Staff Attorney
California Teachers Association

York Chang is a Staff Attorney at the California Teachers Association. Chang was formerly the Chief Counsel for SEIU Local 1000, California’s largest public sector union for state employees.  Chang has negotiated multiple collective bargaining agreements for SEIU Local 1000 and the State Bar of California’s employee union, and has represented union members in hundreds of administrative hearings and arbitrations. Chang provided technical and legal advice to public sector unions and legislators on numerous Janus-related bills that sought to protect the collective bargaining, membership contracts, and First Amendment rights of public sector employee unions. As a CTA staff attorney, Chang worked closely with outside counsel Altschuler & Berzon on nine separate class-action lawsuits filed against CTA immediately after the Janus decision.

Emily Martin

Adjudicator/Mediator
Public Employment Relations Commission (PERC), Washington

Emily Martin is a Adjudicator & Mediator at the Public Employment Relations Commission in Washington State. She mediates, arbitrates conducts statutory hearings and provides trainings.. Emily the public co-chair of the ABA’s Section of Labor and Employment Law’s Social Media and State and Local Government Bargaining and Employment Law Committees.


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