When it comes to responding to the coronavirus, New York is likely to struggle with a pre-existing condition: the Taylor Law.
Governor Andrew Cuomo has the authority to suspend portions of the Taylor Law—and to preserve vital public services, he should.
Technically Article 14 of the Civil Service Law, and formally the Public Employees Fair Employment Act, the 1967 statute binds public employers to union contract terms that dictate not just pay and benefits but also work rules that ultimately control how government services are delivered. These rules cover topics ranging from how police shifts are scheduled, to minimum staffing levels, to the order in which employees can be offered overtime.
This is an installment in a special series of #NYCoronavirus chronicles by Empire Center analysts, focused on New York’s state and local policy response to the Coronavirus pandemic.
Even in normal times, the Taylor Law ties the hands of local officials seeking to reduce costs or make their employees more efficient. And what the state is experiencing now, and will experience in months ahead, is not normal.
The state Public Employment Relations Board (PERB), which enforces the Taylor Law, has repeatedly ruled against public employers who tried to deviate from contracts, even when there was a good practical reason (albeit under more conventional circumstances). But PERB has never laid out a clear doctrine on what can happen in an emergency—leaving employers to fear legal sanctions over pushing too hard against decades-old contracts that tie their hands.
As staff shortages compound, the Taylor Law is likely to hamper local governments trying to assign workers to different worksites, modify schedules, or assign work usually performed by members of a different union.
State government got an early taste of these obstacles when agencies moved to have state workers telecommute—but first had to reach agreements with state employee unions.
The need for flexibility is becoming apparent at larger public employers such as the New York Police Department, where 12 percent of employees were out sick in one day, and at the Metropolitan Transit Authority, where more than 1,100 employees have been quarantined.
Under the Taylor Law, management can’t make scheduling or other staff changes that conflict with union contracts; instead, they must first “exhaust all available opportunities and efforts” to negotiate “until a genuine deadlock occurs.”
That’s left management at the mercy of bad work rules that existed before the crisis began earlier this year.
The state Department of Health, the hub of the state’s coronavirus testing and tracking operation, remains gripped by union work rules that purportedly go so far as to prevent anyone who isn’t represented by the Civil Service Employees Association from moving furniture between offices.
And the United University Professions, the union representing staff at state hospitals, as recently as last December reminded its members “one Union should not do another Union’s work”—meaning even when it seems essential, they shouldn’t pitch in and do a job normally assigned to, say, a CSEA member.
“We know that you are trying to be helpful,” the UUP have repeatedly warned in member newsletters, “but it is to the detriment of the Unions.”
Management’s North Star
In response to the pandemic, Minnesota Governor Tim Walz earlier this month suspended parts of that state’s public-sector collective bargaining law relating to union work rules. Walz—a product of his state’s Democratic-Farmer-Labor Party, and hardly a Scott Walker clone—explained:
“I also have concluded that to protect the health and safety of Minnesotans and minimize the impact of the peacetime emergency on government operations, state agencies require the flexibility to hire staff, schedule, assign, and reassign employees without adherence to existing limitations in collective bargaining agreements, memoranda of understanding, compensation plans, statutes, administrative rules, administrative procedures, and policies that present barriers to the needs of state agencies to efficiently and effectively mobilize and deploy their workforce during this peacetime emergency.”
Several weeks ago, New York’s Legislature gave Governor Cuomo similar authority to suspend portions of state law, which he has exercised to do everything from allowing take-out alcoholic beverages to letting government retirees return to work without having their pensions reduced.
Cuomo can—and should—hit pause on union work rules based on the need for operational flexibility alone. There would also be a secondary benefit: with the state facing a $10 billion to $15 billion revenue shortfall, this is not a time to turn down easy ways to reduce costs at every level of government. The New York City subway system, for instance, could save substantial money if it no longer had to give overtime to the most senior (read: most expensive) employees.
The greatest resistance to such a move would come from public employee unions themselves. After all, if elected officials, and taxpayers, see how much more efficiently things can get done without union contract terms, they’re likely to ask why those terms should return when the crisis has passed.
And that would be a fair question.