First Challenges to Florida’s 2023 Public-Sector Union Law Fizzle as New Requirements Take Effect

Public-sector employers in Florida will want to make certain they are in compliance with new restrictions on non-public safety unions (i.e., unions representing public-sector employees other than police officers, firefighters, and correctional officers), as Senate Bill (SB) 256 became effective on July 1, 2023.

Quick Hits

• On July 1, 2023, parts of Florida’s SB 256, a law that imposes new requirements on certain unions representing public-sector employees, took effect.
• The first challenges to the law—a pair of federal and state lawsuits filed by unions seeking to enjoin enforcement of the law’s provisions with a July 1, 2023, effective date—recently fell short.

Senate Bill 256, approved by Governor Ron DeSantis on May 9, 2023, and effective in part as of July 1, 2023, amends several portions of Florida’s Public Employees Relations Act. The three most contentious changes are that the law:

1. prohibits direct payroll dues deductions and assessments by the public employer;
2. requires the union to be recertified as the bargaining agent if the number of employees paying dues during the last registration period is less than 60 percent of the number of eligible employees; and
3. requires those certain unions to provide additional information that relates to the number and percentage of dues-paying members in each bargaining unit in its annual registration renewal with the Public Employees Relations Commission (PERC).

Almost immediately following SB 256’s enactment, public-sector unions filed federal and state actions to stop the law from going into effect. In the lead federal lawsuit, the unions asked the federal court to enjoin or stop the law from taking effect. They primarily argued that the most contentious issues violated the First Amendment and Contracts Clause of the United States Constitution.

The federal court declined to enjoin the law, finding that the unions lacked standing for two reasons. First, the court found that the unions had not suffered a First Amendment injury. Second, the court determined that an injunction against PERC on the dues issue would be fruitless. An injunction against PERC would not provide the unions the relief they sought: forcing public-sector employers to continue to deduct dues for the unions.

After the ruling in the federal lawsuit was entered, eyes turned to a state court challenge that the unions had filed. There, the unions also sought to enjoin the law, making substantially similar arguments to enjoin PERC from enforcing the new law. On June 30, 2023, the state court issued an order declining to enjoin SB 256 from going into effect.

Accordingly, on July 1, 2023, the first parts of SB 256 went into effect—namely, the law’s prohibition on automatic payroll deductions of union dues and uniform assessments. The law’s provisions permitting public employees to revoke union membership at any time and setting forth the inclusion of specific disclaimers on union membership authorization forms also took effect on July 1, 2023. Other sections of the law related to registration renewal, recertification, and financial audits are scheduled to take effect on October 1, 2023.

Public-sector employers may want to prepare to comply with the new law, including particularly the logistical challenges involved with stopping union dues collections.

Ogletree Deakins will continue to monitor developments and will provide updates on the Florida blog as additional information becomes available.

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