Lawmakers Declare April 10 Dolores Huerta Day

August 2018
Number 40

The Legislature has declared that April 10 is Dolores Huerta Day. Assembly Bill (AB) 2644, which dedicates the day to the activist and labor leader, becomes effective January 1, 2019.

The new law encourages public schools and other educational institutions to observe this day by conducting activities that commemorate the life and accomplishments of Dolores Huerta. However, the legislation does not create a new mandatory paid holiday.

Huerta is known for working to improve social and economic conditions for farmworkers and for defending civil rights. She has received many honors for her civil rights work, including receiving the Eleanor Roosevelt Human Rights Award in 1998 and being inducted into the California Hall of Fame in 2013.

For more information about AB 2644 or about days of special significance in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah Levitan Kaatz

Partner

Carolyn L. Gemma

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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New Law Clarifies Limits on Employer Use of Applicant Salary History

August 2018
Number 39

A new law clarifies recently enacted rules prohibiting employers from asking job applicants about their salary history. The changes included in Assembly Bill (AB) 2282, which becomes effective on January 1, 2019, eliminate some ambiguity concerning an employer’s limitations with regard to requesting an applicant’s salary history information.

Background

In 2017 lawmakers approved AB 168, which limits what employers, including public entity employers, can request from applicants in terms of salary history information and also how that information can be used. (See 2017 Client News Brief No. 68.) It added section 432.3 to the Labor Code, which prohibits employers from asking a job applicant for salary history information and from using an applicant’s salary history information as a factor in determining whether to offer the applicant employment or what salary to offer the applicant, except in specified circumstances.

AB 168 did permit employers to obtain salary history information that is legally required to be disclosed to the public, such as information that is subject to the California Public Records Act or federal Freedom of Information Act. Employers may also consider salary history information if the applicant voluntarily provides it.

AB 2282, makes the following changes to the above stated law:

  • An “applicant” or “applicant for employment” means “an individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position.”
  • A “reasonable request” means “a request made after an applicant has completed an initial interview with the employer.”
  • “Pay scale” means a “salary or hourly wage range.”
  • Employers may ask an applicant about his or her salary expectation for the position for which the applicant is applying.

Takeaways

Existing law prohibits an employer from paying any employee at a wage rate less than the wage rate paid to employees of the opposite sex for substantially similar work, under substantially similar working conditions, unless the employer demonstrates that one or more of the following factors, reasonably applied, account for the entire wage differential:

  • A seniority system;
  • A merit system;
  • A system that measures earning by quantity or quality of production; and/or
  • Education, training or experience not attributed to gender that fulfills a legitimate business purpose.

The Ninth Circuit Court of Appeals recently ruled that using an employee’s prior salary as a basis for establishing their initial salary is a violation of the federal Equal Pay Act. (See 2018 Client News Brief No. 25.) AB 2282 clarifies and reiterates that although prior salary cannot justify any disparity in compensation, an employer can make a compensation decision based on an employee’s current salary when the resulting wage differential is justified by one or more of the above stated factors. AB 2282 provides employers a safety net when there are legitimate business reasons for a wage differential between genders.

For more information about AB 2282 or about the use of salary history in the employment process in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah Levitan Kaatz

Partner

Carolyn L. Gemma

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

PERB Reaffirms Importance of Meeting and Conferring with Unions

August 2018
Number 36

The Public Employment Relations Board (PERB) recently reaffirmed the importance of meeting and conferring with unions regarding information requests. In Department of State Hospitals (PERB Dec. No. 2568-S) (DSH), PERB concluded that an employer violated the Dills Act by refusing to provide relevant and necessary information to a union requesting such information in order to represent its member.

Background

A group of 14 patients filed a complaint against a DSH employee that included reports of suspected dependent adult/elder abuse. The complaint was investigated and findings letters issued. The employee received a letter directing her to be professional while interacting with staff and patients, and to not use profanity.

The union representing the employee asked to review the hospital’s supporting documentation for the formal corrective action. DSH refused to provide all of the requested documents and claimed the employee was only entitled to the documents if an adverse action issued.

Under applicable laws, an exclusive representative is entitled to all information that is “necessary and relevant” to the discharge of its duty to represent bargaining unit employees. An employer’s failure or refusal to provide such information violates the duty to bargain in good faith unless the employer proves the information is “plainly irrelevant” or raises a valid defense to production of the information.

DSH claimed its refusal to provide the documents was based on contractual waiver, confidentiality, and the non-existence of a list of employees who had received formal corrective actions. DSH argued the union waived its right to obtain information contained in the employee’s personnel and supervisory files because the information request did not indicate that the employee had authorized the union to review those materials, as required by the MOU. DSH also claimed the investigation materials were privileged and should be withheld to protect employee and patient confidentiality. Finally, DSH claimed it did not possess a list of bargaining unit members who had received formal corrective actions over the prior three years for incidents similar to the employee’s and was therefore not required to provide it.

PERB reasoned that privacy interests may limit a union’s right to obtain information. However, a claim that disclosure of requested information would implicate privacy interests must be made in a timely fashion so the parties can meet and confer over how to resolve the privacy concern. PERB found DSH’s delay in asserting patient and employee confidentiality deprived the union of the ability to negotiate over accommodating privacy prior to the deadline for filing a complaint. Further, DSH only asserted a confidentiality concern about the list of bargaining unit members who had received similar formal corrective actions and not about the investigation materials, which were the sole subject of DSH’s confidentiality defense before PERB. Because of the delay in asserting this defense, PERB found that the defense failed.

According to PERB, DSH correctly noted “an employer need not comply with an information request if the requested information does not exist.” When the requested information does exist in some form, however “the fact that the employer may have to compile it from various sources does not excuse the employer from producing it unless the employer can prove doing so would be unduly burdensome.” PERB declined to consider whether creating the list would be unduly burdensome because DSH did not assert this defense until the hearing. Just as with the confidentiality claim, an assertion that an information request is unduly burdensome must be timely raised so the parties can negotiate over eliminating or reducing the employer’s burden. PERB found the untimeliness deprived the union of the ability to negotiate over how the information might be provided in a less burdensome manner.

Takeaways

This decision provides a useful roadmap of the process an employer should follow before refusing to provide requested information to a union.

  • If the employer does not believe the information requested is “necessary and relevant,” it should ask the requesting union for an explanation.
  • Employers should disclose exceptions to information requests to the union up front. PERB will be less likely to side with the employer if the exception is first raised at the hearing.
  • Employers should meet and confer with the union about information requests to which exceptions are taken, compromising when possible and seeking resolution of the issues. PERB and other administrative bodies and courts will be more likely to side with an employer that attempts to resolve an issue directly with the union.

For assistance with union information requests or questions about the collective bargaining statutes in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

Cory R. Lacy

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Lawmakers Okay Budget Bill Addressing Union Dues Collection and Communications about Membership Rights

June 2018
Number 29

California lawmakers have approved a budget trailer bill that imposes new obligations on public sector employers related to deducting union dues and fees from workers’ paychecks. Governor Jerry Brown signed Senate Bill (SB) 866 on the same day the United States Supreme Court barred the collection of mandatory agency fees that cover unions’ cost of providing services, which the Court deemed a violation of workers’ First Amendment free speech rights. (See 2018 CNB No. 27.)

The Governor signed the bill, which combines the language of several other pieces of pending legislation intended to protect public agency unions, on June 27, 2018. Like all budget bills, the provisions in SB 866 became effectively immediately.

Dues Processing

SB 866 would standardize dues processing requirements across public agency unions and would expand the requirements to include employees of the Judicial Council, and also public transit district employees who are not already covered by a specific collective bargaining law. The bill also covers municipal employees and both certificated and classified employees who work for public school and community college district employers.

SB 866 imposes explicit requirements on public agency employers and generally makes unions responsible for portions of the dues collection process. Specifically, the bill:

  • Authorizes employee organizations, bona fide associations and both current and retired public agency employees to request payroll deductions and requires employers to honor such requests.
  • Specifies that revocation of an authorization must be determined by the terms of the authorization and requires public employers to direct employee requests to cancel or change deductions to the employee organization.
  • Clarifies the period in which payroll deductions commence after the employee organization notifies the public employer that it has written authorization for the deductions.
  • Bars a public employer from requiring an employee organization to submit a copy of a written authorization before commencing payroll deductions, unless a dispute arises about the existence or terms of the authorization.
  • Requires unions to indemnify public employers against claims regarding dues deductions made in reliance on information provided by the union.
  • Permits public agencies to recover, from the dues and fees transmitted to unions representing most certificated K-12 staff and academic employees of community colleges, the actual reasonable cost of making the deductions. Fees transmitted to unions representing classified school and community college district employees must still be deducted free of charge.

New Employee Orientation

Additionally, the bill makes the date, time and location of new employee orientation sessions confidential. Under SB 866, only invited employees, union representatives and vendors contracted to provide services for the sessions may be given date, time and location information for orientation sessions. These new provisions are in furtherance of SB 119, which mandated union access to new employee orientation sessions and became effective on January 1. (See 2017 CNB No. 34.)

Employer Communication

The bill restates existing law that took effect January 1 that bars public employers from discouraging or deterring public employees or applicants from becoming or remaining union members and additionally prohibits public employers from discouraging or deterring employees or applicants from authorizing union representation or the deduction of union dues or fees.

SB 866 also subjects to the meet and confer process any mass communication regarding public employees’ right to support or join, or to refrain from supporting or joining, a union. If an agreement about the content of the communication is not reached, public employers must include a communication of “reasonable length” from the union representative with any communication they send regarding this right.

The Public Employment Relations Board (PERB) is granted jurisdiction for enforcing the bill’s provisions.

If you have any questions about SB 866, the new state budget or labor relations in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Supreme Court Rules Public Sector Union Agency Fees Are Unlawful

June 2018
Number 27

This news brief is intended for public school districts, including community colleges. For the Janus news brief intended for municipalities and special districts, click here.

Overturning a longstanding precedent, the United States Supreme Court has held in Janus v. AFSCME that public employees may not be compelled to pay mandatory agency fees, or “fair share” fees, to public-sector unions, because such fees violate the First Amendment.

The Janus decision will have a sweeping, nationwide impact on public sector labor unions. The Court’s 5-4 decision immediately affects laws in at least 22 states, including California, that currently allow public sector unions to charge and collect agency or fair share fees.

Background

Mark Janus is an Illinois public sector employee who sued the American Federation of State, County and Municipal Employees (AFSCME), arguing that a state law allowing the union to charge and collect fees from non-members violated his and other workers’ First Amendment rights.

The Supreme Court previously decided this issue in 1977 in the case of Abood v. Detroit Board of Education, then holding it was constitutional for public sector unions to collect agency fees from nonunion members to defray the cost of collective bargaining and other activities, provided nonunion members were not required to pay for a union’s political or ideological activities. The Court now holds in Janus that states and public-sector unions may no longer collect agency fees from nonconsenting employees.

The Court held that compelling employees to subsidize the speech of private speakers, including public-sector unions, violates the First Amendment, noting that “[c]ompelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”

Critically, “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” In anticipation of the ruling, California’s newly adopted Senate Bill (SB) 866, signed into law by the Governor on June 27, makes several changes regarding public employers’ deduction of union dues and fees. Among these is a requirement for public employers to rely on the representations of the union regarding an employee’s deduction authorizations. Given the Supreme Court’s holding, this provision of SB 866 potentially runs afoul of the First Amendment, as interpreted and applied in Janus.

Additional notable statements made by the Court in Janus include:

  • Unions can be effective even without agency fees, without which designation of a public-sector union as the exclusive representative still confers many benefits.
  • Representation of nonmembers, even without agency fees, furthers the union’s interest in keeping control of the administration of the collective bargaining agreement, since the resolution of one employee’s grievance can affect others.
  • Going forward, it would likely be unconstitutional for a public sector employer to adopt a collective bargaining agreement that discriminates against nonmember employees.
  • Individual employees who are not members of a union may potentially be required to pay for certain services of a union, such as representation at disciplinary proceedings.

Next Steps and Considerations for Public Agency Employers

1. Stop Agency Fee Deductions

The Court’s decision in Janus is effective immediately, meaning employees who are non-members cannot be charged agency fees. Accordingly, employers must stop deducting agency fees from the paychecks of public employees. Going forward, an employer may not deduct fees unless an employee clearly and affirmatively consents to the deduction before it is implemented.

SB 866 creates a layer of potential complication because it modifies the law to require public employers to rely on the representations of the union regarding an employee’s deduction authorizations. This likely leaves public agency employers with at least three potential options: (1) stop agency fee deductions immediately without communication with union leadership; (2) stop the agency fee deductions after providing a notice to union leadership as to the employees who the public agency believes to be agency fee payers and whose deductions will be halted with the July paycheck; or (3) stop the fee deductions after the union and public employer agree to the list of employees whose fee deductions will be halted, and rely on the new provisions of SB 866 requiring the union to defend and indemnify the employer in the event a fee payer brings suit to recover fees deducted subsequent to the issuance of the Janus decision.

To avoid future lawsuits, public agencies are encouraged to have their human resources and payroll departments work collaboratively with union leadership to identify employees who are agency fee payers and develop a strategy to ensure prompt compliance with Janus. For many public school district employers, working closely with their county office of education will be critical to accurately updating payroll records to ensure employees are no longer charged agency fees going forward.

2. Implement a Communication Plan

Public agency employers who have agency fee provisions in their union agreements should develop a communication plan to address the likely questions that will come from employees and unions in the days and weeks following this decision. Specifically, taking steps to identify a single point person to respond to questions regarding the impacts of theJanus decision will ensure cohesive and clear messaging and avoid the potential for managers and supervisors to inadvertently run afoul of laws prohibiting discouraging or deterring union membership. In developing these communication strategies regarding whether, and how, to communicate the Janus decision to employees, employers should remain neutral and mindful of applicable law, including SB 285, which prohibits employers from deterring or discouraging public employees from becoming or remaining members of a union, and SB 866, which restricts a public employer’s ability to communicate with employees about the Janus decision.

Specifically, under SB 866, any “mass communication” sent to employees or applicants concerning their rights to join or support or refrain from joining or supporting their union requires a meet and confer process with the applicable union. Any mass communication concerning the Janus decision will likely fall within this provision and requires the parties to attempt to craft a mutually agreeable content, or follow the alternate process of distributing two sets of mass communication: one from the employer and one from the union.

Public agency employers are further encouraged to provide an update on the case to their unrepresented managers and supervisors, along with governing board members, and to provide talking points in the event they are faced with questions about the Janus decision.

To assist our clients, we are developing a communication template. If you are interested in receiving this, please contact one of our offices.

3. Examine Collective Bargaining Agreements

After these immediate next steps are in place, in consultation with legal counsel, public agency employers should review their collective bargaining agreements to determine how the Court’s decision impacts current contract language, assess what articles are impacted by Janus, and determine whether any immediate action or negotiation is required.

While the Court’s decision may not immediately impact current dues-paying union members, some members could choose to opt out of union membership in the future as a result of the Court’s decision, in accordance with applicable collective bargaining agreements and membership agreement. To the extent membership in a union and attendant dues deductions are premised on an opt-out article or practice, wherein the employee is automatically in the union and automatically charged union dues unless he or she ops out, such provisions will need to be negotiated with the union to comply with Janus so that an employee clearly and affirmatively consents to union membership.

Related Bills

In addition to SB 866, please be aware that there are other bills pending in the California Legislature that address union dues and labor relations. Lozano Smith is tracking all of these pending bills and will provide updates if any are adopted by the Legislature and signed by the Governor.

Guidance Measures – Full Suite of Resources

Lozano Smith has partnered with leading associations and has also developed several training opportunities and resources to assist public agency employers in addressing new requirements and obligations. We invite you to download and register for any of the following:

  • Webinar: Join a panel of Lozano Smith attorneys for a live webinar on Friday, June 29. This interactive podcast will break down the Janus decision and SB 866 and offer a guide for implementation. Registration is open here.
  • Toolkit: Lozano Smith will be soon publishing an in-depth resource with answers to frequently asked questions, an implementation checklist, templates for communication, and more.
  • CASBO Workshop: The Northern Section Human Resources Professional Development Workshop Series will feature Dulcinea Grantham presenting a legal update exploring the impact of Janus. Registration is open here.
  • ACSA FAQ: Lozano Smith helped lead the development of a comprehensive overview specific to Janus and SB 866. This FAQ is available for download here.

For assistance responding to the immediate and long-term impacts of Janus, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea Grantham

Partner

Gabriela D. Flowers

Senior Counsel

Erin M. Hamor

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Rules Employee’s Prior Salary Cannot be used as Basis for Wages

June 2018
Number 25

The Ninth Circuit ruled in Rizo v. Yovino that using an employee’s prior salary as a basis for establishing their initial salary is a violation of the federal Equal Pay Act.

The decision is based on a policy adopted by the Fresno County Office of Education, which determined a new employee’s initial salary by adding 5 percent to their previous salary. The Ninth Circuit found that this policy was impermissibly based on sex, in violation of the federal Equal Pay Act, because using previous salary to set new wages carries the risk of perpetuating a discriminatory wage disparity from the employee’s past employers.

Background

Aileen Rizo, the plaintiff in the case, was hired by Fresno County Office of Education as a math consultant after having been employed in Arizona as a middle and high school math teacher. Based on her low previous wages, Rizo was placed at step 1 of level 1 of the salary schedule. Several male math consultants, who previously worked in California, were hired after Rizo. Later, Rizo learned that she was being paid much less than her male counterparts and she filed a pay disparity complaint and subsequently sued the county office.

The federal Equal Pay Act prohibits paying female employees less than their male counterparts for similar work. There are four exceptions to this general rule, including when the difference in pay is based on a “factor other than sex.”

The county office argued that their policy was lawful because the wage difference was based on Rizo’s prior salary from Arizona, not because she is a woman, and therefore meets the catchall exception in the federal Equal Pay Act.

The Ninth Circuit disagreed, stating the Equal Pay Act’s catchall exception should not be used to continue sex-based wage disparities, counter to the primary purpose of the Equal Pay Act itself. The catchall exception should instead be read in light of the law’s surrounding context and legislative history to mean male and female employees can be paid differently based on a legitimate, job-related “factor other than sex,” such as the employee’s education, training, or experience. The Ninth Circuit also clarified that the decision would not prohibit continuing use of salary schedules, as long as an employee’s prior salary is not used to set an initial or promoted employee’s placement on the salary schedule.

This decision is consistent with Assembly Bill (AB) 168, which prohibits employers from asking job applicants for their salary history, as part of the Legislature’s effort to equalize reported discrepancies in pay between men and women. AB 168 went into effect on January 1, 2018. (See 2017 Client News Brief No. 68.)

If you have any questions about this case or need assistance revising your district’s salary schedule criteria, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Michael E. Smith

Partner

Joshua Whiteside

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Adds “Nonbinary” Gender Option to Identification Documents, Impacting All Public Entities

March 2018
Number 13

On October 15, 2017, Governor Jerry Brown signed Senate Bill (SB) 179, known as the “Gender Recognition Act,” which adds a “nonbinary” gender option to state driver’s licenses, identification cards, and birth certificates. Most of this bill’s provisions are set to take effect on September 1, 2018, including a provision allowing an individual to petition a California court to recognize their gender as nonbinary, which would then allow them to subsequently request a new birth certificate reflecting their gender identity.

Public entities will need to address the nonbinary gender option now available to employees and students on official documents. Job application forms will likely require revision to allow the indication of nonbinary gender. Training may be necessary to inform employees about the new law and to re-instruct them about responding appropriately to new job applicants or existing employees who identify with a nonbinary gender, which could be included as part of a public entity’s sexual harassment training. SB 396, also passed in 2017, requires employers with 50 or more employees to conduct training on harassment based on gender identity, gender expression, and sexual orientation. Further, school employees will likely need guidance
on how to address potential issues that may arise on campus regarding nonbinary persons.

SB 179 follows Assembly Bill (AB) 1266, made effective January 1, 2014, which allows students to participate in school programs and activities and use facilities consistent with their gender identity. While AB 1266 is often considered in relation to transgender students, the law itself refers to gender identity, which includes those identifying as nonbinary.

School districts, community college districts, and charter schools should update student forms to ensure the indication of nonbinary gender is available for the 2018-2019 school year. The California Department of Education, in its guidance on AB 1266, states, “when a school district receives documentation that a legal name or gender has been changed, the district must update the student’s official record accordingly.” This would apply to all official student records including a gender designation, including but not limited to enrollment and registrations forms, IEPs, 504 plans, report cards, and transcripts. Districts should also contact their electronic student information system providers to ensure electronic systems are updated accordingly in advance of the 2018-2019 school year.

If you have any questions about the implementation of SB 179, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

Sarah L. Garica

Partner

Joshua Whiteside

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.