Be Alert to Requests for Employee Information from Public Sector Unions

At least one major public sector union, the Civil Service Employees’ Association (“CSEA”), has been aggressive of late in filing requests for certain information pertaining to school district employees.

These requests can be sorted into two categories: 1) requests from an existing bargaining unit (union) for information relating solely to unit employees; and 2) requests for information relating to employees who are not represented by the requesting union.

Given the large number of school districts who have recently received such informational requests, districts should be aware of their rights and obligations in responding to them.

Requests Relating to Existing Bargaining Unit Employees (Taylor Law Requests)

The New York State Public Employment Relations Board (“PERB”) has held that a union is generally entitled to information needed for contract negotiations and contract administration (including investigating grievances). The employer’s obligation is limited by “rules of reasonableness”. These include the burden on the employer to provide the information, the availability of the information elsewhere, the union’s need for the information, how relevant the information is, and that the employer need not supply the information in the form requested by the union.

In the 2018 Budget Bill, in anticipation of the impending decision of the U.S. Supreme Court in Janus v. AFSCME Council 31 that invalidated New York’s agency fee provision (Taylor Law §208[3]), the New York State Legislature enacted several amendments to the Taylor Law. Among these amendments were provisions that provided unions with specific statutory rights to certain information relating to bargaining unit employees.

Section 208(1)(d) of the Taylor Law now provides, unless otherwise specified by the collective bargaining agreement, that upon the request of the employee organization (the union), not more than quarterly, the employer shall provide the union with the name, address, job title, employing agency or department or other operating unit and work location of all employees within the bargaining unit.

However, CSEA’s recent informational requests are much broader in scope than what the law requires be disclosed, and in some cases seek information that extends to the home addresses, home phone numbers, home e-mail addresses and even social security numbers of unit employees.

Districts should limit their responses to such requests by providing only what the collective bargaining agreement (contract) or Taylor Law requires. Begin by reviewing the applicable contract for any provisions governing the provision of employee information to the requesting union. If the contract is silent, then the District must provide what the Taylor Law requires, as described above. Broader requests by a union pursuant to the Taylor Law should be denied. In fact, the Taylor Law was further amended by the 2019 Budget Bill, to make it an improper practice for a public employer to disclose employee home addresses, personal phone numbers (landline or cell), or personal email addresses unless otherwise required under the Taylor Law or by another law. The legislation does not affect other laws regarding disclosure of “work-related, publicly available information such as title, salary and dates of employment.” Taylor Law § 209-a(1)(h).

Districts also need to be aware of the recent Taylor Law amendments that require public employers to proactively provide a union that represents a bargaining unit with certain information related to all new hires, or employees who are promoted or transferred into a new bargaining unit, within thirty days of a public employee first being employed or reemployed, or within thirty days of being promoted or transferred to a new bargaining unit. In such cases, the public employer must provide the union that represents that bargaining unit of the employee’s name, address, job title, employing agency, department or other operating unit, and work location. Taylor Law § 208(4)(a).

Requests for Information Relating to Non-Unit Employees

In contrast, requests by a public sector union for information pertaining to employees who are not represented by the union are generally made as Freedom of Information Law (“FOIL”) requests and should be analyzed pursuant to the relevant provisions of FOIL and the limited body of case law and advisory opinions of the Committee on Open Government relating to such requests.

Particularly instructive for these types of inquiries is a matter from the New York State Court of Appeals in 2010, NYSUT v. Brighter Choice Charter School (15 N.Y.3d 560). In that case, the Court held that several charter schools were not required to disclose the full names of their teachers in response to FOIL requests submitted by the New York State United Teachers (“NYSUT”). This was because the records fell within FOIL’s personal privacy exemption, which includes the “sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes.” “Giving the term “fund-raising” its natural and most obvious meaning,” the Court found it evident that NYSUT’s intent in requesting the teacher names was to expand its membership and, by extension, obtain membership dues. In addition, the Court found that ordering disclosure of the names would not have furthered the policies of FOIL where there was no indication NYSUT intended to use the names to serve a governmental purpose.

Districts should review in detail the list of employee information sought in such FOIL requests for information on unrepresented employees, and only produce information which does not constitute exempted information under the law. For example, responsive records maintained by a district which outline an employee’s job title, work site, and current salary or hourly wage will be subject to disclosure. However, consistent with the above decision and other precedent, districts should withhold and/or redact portions of the responsive records that, if disclosed, would constitute an unwarranted invasion of personal privacy and are exempt from disclosure under Public Officers Law Section 87(2)(b) including but not limited to categories such as name, home address, home e-mail and personal phone numbers.

Should you have any questions, please do not hesitate to contact our office.