Donohue v. Milan, No. 17-2832 (2d Cir. 2019)Annotate this Case
After the Authority implemented a reduction in force (RIF), plaintiffs filed suit against the Authority and others under 42 U.S.C. 1983 and New York law, alleging that the termination of union-represented employees violated the employees' First Amendment right to associate. At issue was whether State Employees Bargaining Agent Coalition v. Rowland, 718 F.3d 126, 134 (2d Cir. 2013), which held that union activity is protected by the First Amendment right to freedom of association and that heightened scrutiny applies to employment decisions that target an employee "based on union membership," extends to agency fee payors (AFPs), who are not union members, based solely on the fact that AFPs are represented by a union during collective bargaining.
The Second Circuit held that the First Amendment protections apply to union members but do not extend to AFPs based on union representation alone. The court held that AFPs did not have a First Amendment right to freedom of association merely because they were represented by a union during collective bargaining. Accordingly, the court affirmed in part, vacated in part, and remanded for the district court to determine whether the layoffs of the thirteen AFPs were justified under rational basis review.