Prince George's County is appealing to the 4th U.S. Circuit Court of Appeals. William Wilkins, the former chief judge of that court, has been tapped to represent the county in the appeal. Wilkins, now a partner in the Greenville, S.C., office of Columbia, S.C.-based Nexsen Pruet, declined comment.
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In Pennsylvania, the fight has a slightly different flavor. Alaine Williams of Philadelphia's Willig, Williams & Davidson will argue on Sept. 16 before the Pennsylvania Supreme Court that, during the summer, the state unlawfully forced thousands of employees to work without paychecks. Pennsylvania's payless paydays grew out of a plan to furlough workers last year because of a budget impasse in the state Legislature. Council 13 of the American Federation of State, County, and Municipal Employees sued, and a state court ruled that the governor could either furlough everyone or require everyone to work without pay until a budget passed.
The ruling prompted the governor this year to order state employees to work without pay. A supplemental appropriations bill was approved earlier this month -- everyone has now been paid -- but the union still wants the state Supreme Court to declare the payless payday unlawful.
Unions and furloughs were also an issue in a New Jersey case. In April, the state appellate court reached a mixed result, upholding the government's power to initiate furloughs in an economic crisis, but staying a plan for "staggered layoffs." That kept 33,000 members of the New Jersey State Policemen's Benevolent Association from being furloughed.
Police union spokesman Jim Ryan said the Maryland and Hawaii decisions bolster what unions have been saying all along about furloughs: "They undermine the credibility of a collective-bargaining agreement."
Herbert Takahashi of Honolulu's Takahashi Vasconcellos & Covert, who represented the Hawaii unions in their toppling of the governor's furlough program, said, "Furloughs are -- in effect -- a reduction in wages, which are a core subject of collective bargaining."
The Hawaii State Teachers Association and the United Public Workers sued Gov. Linda Lingle in state court. Judge Karl Sakamoto held that because the state constitution gives public employees the right to collectively bargain, the state cannot make "unilateral changes on matters that are subject to mandatory bargaining." Hawaii is appealing.
Not all unions are crying foul, said lawyers who have helped draft government furlough plans that were not legally challenged. Tim Yeung of the Sacramento office of San Francisco's Renne Sloan Holtzman Sakai said most of his firm's 40 municipal clients have initiated furloughs -- negotiated first with the unions -- and none have been challenged. The unions "understand that the only alternative to furloughs would be layoffs," he said.
Yeung also doubts the Maryland ruling will affect California cases. "It seemed like the [Maryland] court was trying to second-guess the county's fiscal practices, and that's something the courts just aren't equipped to do," he said.
Zachary Hummel, a partner in the New York office of Bryan Cave, said a third of his public clients have furloughed employees, and none have been sued. He added that each government employer either negotiated the furlough with the union or convinced the union there were no other options. Public employers must make the effort to show "that what you did was a reasonable response to an economic necessity," he said.
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