PERB Admonishes School District for Blanket Prohibitions on Distributing Union Literature

December 2018
Number 87

On October 22, 2018, the Public Employment Relations Board (PERB) upheld an administrative law judge (ALJ) decision finding that the Petaluma City Elementary School District/Joint Union High School District (“District”) interfered with employee and organizational rights by: (1) directing employees not to distribute literature “of a political or union nature” on District property, including during non-work time and in on-work areas; and (2) directing employees not to distribute any pamphlets “during the workday” without regard to breaks or other non-work time during the day.

Background

On September 5, 2014, the District administration emailed a memo to school administrators advising them of the “rules for staff handing out flyers.” A school site principal forwarded this memo to teachers at his school site. The memo said:

Teachers may hand out flyers after school when they finish their work obligations. They may not hand them out before school as they are to be in their classroom 30 minutes prior to school starting. They cannot hand out flyers of a political or union nature. They must be off school property when they hand out flyers, not in a driveway or walkway on school campus. The sidewalk in front of a school is public property and they may hand them out there.

On October 10, 2014, a different school site principal sent an email to at least one teacher, saying, in relevant part:

It is my understanding that handing out pamphlets can only happen outside of your work day. I know the long hours you all put in and that an official ‘work day’ is not defined. Since an official teacher duty begins at 7:55, we can safely call that the start of your work day. And at the end of the day, the final teacher duty ends around 2:45 so that can be considered the end of your work day. Please hand out pamphlets outside of your work day.

The Petaluma Federation of Teachers, Local 1881 filed an unfair labor practice charge alleging the September 5 and October 10 emails interfered with union members’ right to engage in protected activity – i.e., distribute flyers and pamphlets containing union information. An ALJ found that the union proved its allegations and held that both emails constituted interference with protected activity.

In its appeal to PERB, the District made two arguments. First, with regard to the September 5 email, the District challenged the union’s evidence of interference, claiming that the union failed to prove “actual harm” to the teacher. PERB rejected this argument. UnderCarlsbad Unified School District (1979) PERB Dec. No. 89 (Carlsbad), the appropriate inquiry “is an objective one which asks not whether any employee felt subjectively threatened or intimidated or was actually discouraged from engaging in protected activity, but whether, under the given circumstances, the employer’s conduct had discouraged, orreasonably would discourage, employees from engaging in present or future protected activity.”

PERB will apply a heightened level of review when an employer explicitly bans “union” activity. Specifically, the employer must show anoperational necessity for the ban, or that there wasno alternative available to the ban. (Long Beach Unified School District (1980) PERB Dec. No. 130.)

Second, with respect to the October 10 email, the District took exception with the ALJ’s finding of interference because the email prohibiting the distribution of pamphlets never mentioned anything about the union. PERB also rejected this argument, holding that an employer’s directive may be unlawful even without an explicit reference to union or protected activities. Rather, it is unlawful if a union member would reasonably construe the District’s directive to prohibit protected activity. Since the October 10 email came soon after the memo was distributed, it was reasonable for the teacher to construe the email to mean it prohibited the distribution of pamphlets containing union information.

PERB further stated that an employee’s right to “join, form and participate” in union activities protects “not only union-related speech, but broader categories of employment-related speech, including employees’ communications with one another about their wages, hours and working conditions.” Accordingly, an employer’s rule banning a general category of conduct, that includes both protected and unprotected activity, is presumptively unlawful because “employees should not have to decide at their own peril what information is not lawfully subject to such a prohibition.”

Takeaways

  • Where a District’s directive reasonably would discourage a union member from engaging in protected activity, no showing of actual harm is required to establish interference.
  • A general directive that prohibits both protected and unprotected activity presumptively violates the Educational Employment Relations Act because the onus cannot be on union members to interpret which prohibitions are lawful or unlawful.
  • Public employers should be careful when crafting directives that may unintentionally affect an employee’s ability to engage in protected activity.

For more information about PERB’s decision or to discuss protected activity and employee rights generally, 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 Facebookor Twitteror download our Client News Brief App.

Written by:

Darren C. Kameya

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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Legislature Further Limits the Ability to Consider Expunged, Dismissed, or Sealed Convictions in Hiring Decisions

December 2018
Number 84

Senate Bill (SB) 1412, which takes effect on January 1, 2019, builds on prior law limiting consideration of expunged, dismissed, or sealed convictions in hiring decisions. SB 1412 prevents employers from requiring job applicants to disclose certain criminal convictions that have been expunged, dismissed, sealed, or statutorily eradicated. SB 1412 also provides that employers may only consider particular expunged convictions that are enumerated in the law when making hiring decisions. Exceptions to this prohibition remain for employers-like public school districts and certain other public agencies-that are prohibited from hiring individuals with certain convictions even if the conviction has been dismissed, expunged, or sealed.

Background

In recent years, the Legislature has focused on limiting the types of convictions that may be considered by employers when making hiring decisions. For example, in 2016, AB 1843 was passed generally prohibiting employers from seeking or using information about an applicant’s juvenile convictions in hiring decisions. (See 2016 Client News Brief No. 86.)

Separate from the use or consideration of juvenile convictions in hiring, existing law prevents employers from requiring applicants to disclose convictions that have been expunged, dismissed, or sealed, subject to several exceptions. These exceptions include situations where: (1) the employer is required by law to obtain information regarding an applicant’s convictions; (2) the applicant is applying for a job that would require him to possess or use a firearm; (3) the law prohibits an individual convicted of a crime from holding the position, even if the conviction is expunged, sealed, or dismissed; or (4) the law prohibits the employer from hiring an applicant who has been convicted of a crime. Aside from the above exceptions, once a conditional offer of employment has been made to an applicant, an employer may consider an expunged, dismissed, or sealed conviction.

Since January 1, 2018, California’s Fair Employment and Housing Act also prohibits similar conduct, with specified exemptions. (See 2017 Client News Brief No. 80; 2016 Client News Brief No. 86.)

Under the above legal protections for job applicants, concerns were raised that employers have been broadly rejecting applicants with expunged convictions, regardless of the nature of these convictions or their relevance to the job or future job performance. With SB 1412, the Legislature narrows the aforementioned exceptions so employers may only consider expunged, dismissed, sealed, or statutorily eradicated convictions that are enumerated in the law. Specifically, this bill provides that employers may only consider such convictions if: (1) the employer is required by law to obtain information regarding the particular conviction of the applicant, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; (2) the applicant would be required to possess or use a firearm in the course of his or her employment; (3) the law prohibits an individualwith that particular conviction from holding the position sought, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; or (4) the employer is prohibited by law from hiring an applicantwho has that particular conviction, regardless of whether that conviction has been expunged, sealed, dismissed, or statutorily eradicated.

Takeaways

Employers should note that the Legislature has instituted additional protections for the consideration of expunged convictions in the applicant screening process. Under the SB 1412, employers can only ask an applicant about or consider expunged, sealed, or dismissed convictions to the extent permitted by law; they cannot simply withdraw an offer merely because an applicant has a conviction that was dismissed, expunged, or sealed. Keep in mind that public school employers are prohibited from hiring individuals convicted of certain crimes, even if such convictions have been dismissed, expunged, or sealed. The laws concerning the use of criminal convictions in hiring public school staff is highly technical and should be carefully reviewed before making a hiring decision based on a conviction, even if it has been dismissed, expunged, or sealed.

If you have any questions about SB 1412, 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:

Gabriela D. Flowers

Partner

Benjamin Brown

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.

FCC Threatens Public Agencies’ Local Control Over Next-Gen Cellular Deployment

November 2018
Number 76

In anticipation of the wave of next-generation cellular technology, the Federal Communications Commission (FCC) adopted a Declaratory Ruling and Third Report and Order significantly preempting state and local control over the use of public rights of way for the deployment of “small wireless facilities” (i.e., micro cellular antennas and equipment). The preemption order was published in the Federal Register on October 15, 2018, and will become effective on January 14, 2019, unless a petition for reconsideration or judicial review is filed. The FCC’s preemption has broad-ranging impacts on local jurisdictions’ ability to impose both application and recurring fees. It also dramatically reduces timeframes for application review (especially for multi-site applications), and places important restrictions on aesthetic and historical preservation regulations. Although the FCC does not directly address school districts or county offices of education – agencies that often site cell towers on their properties – failure of these entities to abide the FCC’s new state and local restrictions would likely invite the FCC to extend its preemption to these entities in the future, especially where the school agency has already established facilities.

Scope of Preemption

From 2006 to 2016, the wireless industry constructed approximately 308,000 “macro cell sites” across the country. Macro cell sites use technology that allows the cellular signal to traverse long distances, so the cell towers can be located hundreds of feet, if not miles, apart. Due to the exponentially fast-growing demand for wireless services, the need to ensure adequate bandwidth to accommodate that demand is compelling the wireless industry to “densify” cellular networks using fifth-generation (5G) ultra-high-frequency wave technology. Because the signals do not travel as far, 5G deployment will require many more “small cell” facilities than previously constructed.

In comments to the FCC, wireless carriers estimated they will need to construct at least 3 to 10 small cells for every macro cell previously built. Taken in the aggregate, some carriers estimate that the industry will need to construct hundreds of thousands of small cell facilities, more than doubling the number of macro cells that were constructed nationwide in the last decade. To put that in context, imagine processing 3 to 10 times the number of cell siting applications your agency processed in the last decade with significantly lower review and attachment fees, and doing it in much shorter timeframes.

The overall objective of the FCC’s preemption order is to restrict state and local measures that “materially inhibit” small cell facilities deployment. The FCC has concluded that states and cities have several regulatory tools they use to “materially inhibit” such deployment: purportedly unreasonable application fees, supposedly excessive recurring fees for access to or pole attachments in the public rights of way, lengthy review times, and onerous zoning and permitting requirements, which include, but are not limited to, minimum-spacing requirements between cells, undergrounding requirements, and ambiguous aesthetics review and regulation. The FCC addressed each of these types of regulations.

Application Review and Recurring Attachment Fees

The FCC’s order unambiguously preempts some state and local fees and creates “safe harbors” for others so long as they are set below “presumptively reasonable” rates. The FCC determined, for instance, that “per-facility fees” – as opposed to per-application fees for applications that propose multiple sites – are “effective prohibitions” on deployment that are now preempted. Similarly, “gross revenue fees” for occupying public rights of way (such as requiring the carrier to pay five percent of gross revenues derived from the site) are also preempted.

Although the FCC acknowledged that local jurisdictions may have unique community needs and that one fee structure will not meet the needs of all agencies, it established a framework for determining whether an agency’s fees are legal (i.e., if the fees do not meet all of these conditions, they are deemed illegal). That framework requires that the fees:

  • Reasonably approximate actual costs;
  • Are based only on objectively reasonable costs (e.g., excessive contractor or consultant fees are not “objectively reasonable” and may not be factored into the fees a local agency may charge); and
  • Are no higher than those charged similarly situated users of the right of way.

The FCC did not find it necessary to set a particular accounting or costing method for determining whether particular fees meet these criteria, but it will hold local agencies to these criteria.

As an alternative, the FCC established that, if a jurisdiction was to charges fees equal to or lower than a certain threshold, it would constitute a “safe harbor” against any legal challenges of reasonableness. The “safe harbor” would cover fees that are equal to or lower than:

  • A non-recurring application review fee of $500.00 for proposed construction of up to five small cells, plus $100.00 for each additional cell proposed in that application;
  • A $1000 non-recurring charge where proposed construction involves the deployment of a new pole in the public right of way; and
  • An annual recurring charge of $270 per micro cell for right-of-way access or pole attachment fees.

Application Review Times

In 2009, the FCC established what are called “Shot Clocks,” which are “presumptively reasonable periods” for local agency review of and action on a proposed wireless facility application. Those Shot Clocks allowed 90 days for review of applications proposing to collocate wireless equipment on existing poles with other equipment attachments, and 150 days for reviewing new siting applications. If an agency did not act within the Shot Clock period, that inaction was deemed a “failure to act” and the carrier could seek legal redress immediately in the courts.

In its preemption order, the FCC shortened the Shot Clocks for small wireless facilities applications while increasing the ease with which the carrier can secure injunctive relief directing the local agency to issue the permits if the agency “fails to act” timely. Specifically, the FCC reduced the application processing times from 90 to 60 days for applications proposing to collocate on existing poles, and from 150 to 90 days for reviewing new siting applications. In addition, the FCC stated that, not only would the carrier have the same access to court redress for an agency’s failure to act within the Shot Clock deadline, but the inaction is now defined as a “presumptive prohibition” against deployment, which allows for expeditious granting of injunctive relief directing the issuance of the permit(s).

Where this shortened review period becomes especially challenging at the local level is when carriers “batch” applications for processing. “Batched applications” involve two scenarios where a single application proposes multiple sites, or multiple applications for single sites are filed at the same time. Regardless of the number of sites proposed in batched applications, the Shot Clock deadlines remain the same: 60 days for collocated facilities and 90 days for new siting. The FCC’s reasoning is that, even if each siting application was filed separately but simultaneously, the deadlines would be the same for processing regardless. The only allowable exception would be where the local agency can show that the batch of applications resulted in a “legitimate overload on the agency’s resources.”

In addition, the local jurisdiction should be aware that the review period begins on the day the application is submitted, regardless of whether it is later deemed to be incomplete. If the local agency notifies the applicant within 30 days of the initial submission that the application is incomplete, the Shot Clock is paused until the carrier submits the necessary supplemental information. If the application is still incomplete after the supplemental filing, the local agency must notify the applicant within 10 days of the supplemental submission, at which point the Shot Clock will be tolled again. The FCC order does anticipate that these restrictive provisions will apply unless the agency and the carrier agree to a different tolling arrangement.

Other, Non-Fee Land Use Requirements

As noted above, local agencies have many cell siting concerns that are unrelated to siting application fees and processing times. These concerns include aesthetic considerations – like avoiding unsightly overhead clutter – undergrounding of facilities, and historical preservation. First, the FCC ordered that any local requirement that all small wireless facilities must be undergrounded is an effective prohibition against deployment and is, therefore, preempted. All other non-fee land use requirements will be evaluated regarding whether they “materially inhibit” deployment. The only “safe harbor” for non-fee land use requirements is where they (1) preserve and advance “Universal Service,” (2) protect public safety and welfare, (3) ensure the quality of telecommunications service(s), or (4) safeguard consumer rights. To the extent a community wishes to maintain aesthetic review of these applications, it must clearly articulate the criteria by which the application will be judged, and it must publish those criteria in advance of an application being filed.

Non-Discriminatory Treatment

The FCC also prohibited discriminatory treatment between different types of right-of-way users, including macro cell versus small cell facilities. The FCC set out two types of discriminatory treatment that it specifically prohibits. First, a local agency may not charge new entrants right-of-way fees that it does not charge incumbent users. Second, the range of fees charged to one type of user (e.g., small wireless facilities users) cannot deviate significantly from the range of fees charged to other users with similar right-of-way uses (e.g., utility users versus small cell users). These non-discrimination concerns apply to both one-time, non-recurring charges and to recurring use fees.

Takeaways

All local agencies that regulate land use for cell siting, including counties, cities, and school districts that already have cell towers, must reevaluate their siting practices to conform to the FCC’s preemption order or face the further loss of local control over the public rights of way. Our team of land use and technology attorneys can assist with your review and update of siting practices to include development of a “safe harbor” fee structure, establishing process times that meet or beat the “Shot Clock,” tolling agreements that may relieve some of the Shot Clock pressure, and aesthetic review criteria that will withstand legal scrutiny.

For more information on the FCC’s action or for land-use or cellular facilities questions generally, 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:

William P. Curley III

Partner

Lee Burdick

Senior Counsel

©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.

New Law Updates Bidding Preferences for Various Public Agencies

November 2018
Number 75

The Legislature has significantly expanded local agencies’ ability to use a small business preferences on a public works projects, and has expanded the use of preferences for small businesses, disabled veterans businesses and social enterprises in some counties. This new law seems to indicate the Legislature is responding to the desire of local agencies to support local businesses.

Assembly Bill (AB) 2762, signed by Governor Jerry Brown, increases the small business preference from five percent to seven percent for all local agencies, including counties, cities, school districts, and other districts. The bill limits the value of a preference to a maximum of $150,000 on any contract, no matter the value of that contract. The small business preference authorizes a local agency, in facilitating contract awards to small businesses, to provide for a small business preference in construction, the procurement of goods, or the delivery of services.

AB 2762 also authorizes local agencies in the counties of Alameda, Contra Costa, Lake, Los Angeles, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma, to adopt preferences for disabled veteran businesses and social enterprises, and provides for the preferences to be a maximum of seven percent for an individual preference and up to fifteen percent for a single bid having two or more preferences. In these counties, an agency’s ability to use a small business preference is not different from agencies outside those counties.

This new law defines a social enterprise to include a nonprofit or for-profit business whose primary purpose is to benefit the economic, environmental, or social health of the community and which uses the methods and disciplines of business and the power of the marketplace to advance its social, environmental, and human justice agendas. The business must also have been in operation for at least one year providing transitional or permanent employment to a transitional workforce or providing social, environmental, or human justice services.

Under AB 2762, each local agency within the specified counties that chooses to utilize a disabled veteran business or social enterprise preference is authorized to define a disabled veteran business and social enterprise and to define their eligibility for the purposes of these preferences and goals. The statute granting authority in certain counties to utilize preferences is set to expire in 2024. However, the statute permitting small business preferences by all local agencies in the state has no expiration date.

To help local agencies meet these preferences, the new law permits a prime contractor, with the approval of the local agency, and subject to meeting specified conditions, to substitute one subcontractor for another, if doing so will help meet the preference adopted by the agency. This provision seems to create a scenario where a subcontractor could be substituted solely in the interest of meeting the agency’s adopted preference, but the new law explicitly states that subcontractors are still afforded all the protections of the Subletting and Subcontracting Fair Practices Act.

Takeaways

AB 2762 demonstrates a greater interest by the Legislature in allowing public agencies to adopt preferences for certain types of businesses. Agencies wishing to adopt such preferences should first review their existing policies and bidding practices for any needed updates to comply with the new law.

For more information on AB 2762, or preferences in bidding generally, including for assistance in drafting policies and bid documents to implement preferences, 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:

Devon B. Lincoln

Partner

Alyse A. Pacheco

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.

Directory and Personal Information Must Be Withheld from Board Meeting Minutes upon Request

November 2018
Number 72

Governor Jerry Brown has signed into law Senate Bill (SB) 1036, which will allow parents and adult pupils to prevent the governing board of a local education agency from including the directory and personal information of a student and/or the student’s family in the governing board’s meeting minutes. SB 1036 is set to take effect on January 1, 2019.

Federal and State law define the extent to which local educational agencies (LEAs), including schools districts, charter schools, community college districts, and county offices of education, can collect and distribute information about students and their families. Under the federal Family Educational Rights and Privacy Act (FERPA) and California law, LEAs are generally prohibited from releasing a student’s “educational” or “pupil” records without written consent.

However, both Federal and State law exclude “directory information” from the definition of “educational” and “pupil records.” Directory information includes a student’s name, address, telephone number, date of birth, email address, major field of study, and dates of attendance.

SB 1036 was proposed to protect directory and personal information of students and their parents or guardians at school board meetings by not allowing their information to be published in the minutes of the meeting upon request. According to the author of the bill, some students and parents feel that the release of their information presents the potential for intimidation, harm, or other harassment based on their testimony during meetings. For this reason, SB 1036 authorizes students and their families to prevent their directory and “personal information” (defined to include a person’s address, telephone number, date of birth, and email address), from being disclosed in the minutes of an LEA board meeting if a student who is age 18 or older, or the parent or guardian of a student, so requests in writing to the secretary or clerk of the LEA governing body.

Takeaway

While SB 1036 provides students and their families with some basic protections against public disclosure of personal information, it is by no means a guarantee that such information will be protected. As stated by the Assembly Committee on Education, given the public nature of LEA meetings, excluding names from meeting minutes is not a guarantee of anonymity, as the names of speakers can be obtained from other meeting participants and attendees, other written reports, and video or audio tape recordings. Further, the new law explicitly states that the provision is not intended to affect the public’s right of access to information pursuant to any other law (e.g., the California Public Records Act or the Brown Act). Entities and individuals should, therefore, be aware of the limits of SB 1036.

Further, LEAs should make sure their staff are aware of SB 1036, and should consider adopting practices and procedures allowing them to properly respond to written requests from parents or adult students. LEAs should also ensure that their board policies pertaining to the release of directory information are updated to be consistent with the new requirements of SB 1036. Finally, school districts may consider alerting parents and the public of SB 1036 through their annual parental notification.

If you have any questions about SB 1036 or about data privacy laws 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:

Manuel F. Martinez

Partner

Bradley R. Sena

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.

Bathrooms Are No Longer Acceptable Lactation Accommodations

November 2018
Number 66

Beginning January 1, 2019, employers will have to make reasonable efforts to provide employees with the use of a room or location, other than a bathroom, as a lactation accommodation.

Existing law already requires employers to make reasonable efforts to provide employees the use of a room or location, other than a single toilet stall, in close proximity to the employee’s work area for the purpose of expressing milk in private. Under these requirements, employers could provide space in a bathroom as an accommodation. Assembly Bill (AB) 1976, which was signed into law by Governor Jerry Brown on September 30, 2018, amends existing Labor Code requirements to expressly state that employers will now have to designate space other than a restroom facility for this purpose. Employees may still use the room or location where they normally work, such as a private office.

AB 1976 creates exceptions to the above requirements in limited circumstances. Relevant to districts and public agencies, an employer who can demonstrate the requirements impose an undue hardship relative to the size, nature, or structure of the employer’s business, may remain legally compliant by providing a room or location, other than a single toilet stall, to an employee wishing to express milk in private.

While AB 1976 narrows employers’ ability to create legally compliant permanent lactation accommodations, it also further amends Labor Code section 1031 to allow employers to create temporary lactation locations, so long as the following conditions are met:

  • The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.
  • The temporary lactation location is private and free from intrusion while an employee expresses milk.
  • The temporary lactation location is used only for lactation purposes while the employee expresses milk.
  • The temporary lactation location otherwise meets the requirements for state law concerning lactation accommodation.

Because the provisions of AB 1976 take effect January 1, 2019, and violations are subject to a civil penalty, public agencies should take steps now to amend their board policies and administrative practices, and update employee handbooks regarding provisions interpreting Labor Code sections 1030 and 1031 to ensure they are compliant.

If you would like to discuss what might constitute an acceptable permanent or temporary lactation accommodation location, the process to be considered for an exception, or any other matters related to employee accommodations, 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

Michelle N. Sinks

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.

New Law Requires Paid Time Off for Union Stewards and Officers

October 2018
Number 65

Effective January 1, 2019, Senate Bill (SB) 1085 requires public agency employers in California to grant, upon the request of a union, “reasonable” paid leaves of absence to employees serving as stewards or officers of the union or of any statewide or national employee organization with which the union is affiliated.

While on such leave, employees must suffer no loss of compensation or benefits and retain reinstatement rights, meaning they have the right to return to the same position and work location held before the leave, or if this is not feasible, a substantially similar position without loss of seniority, rank, or classification. Benefits while on leave also include retirement fund contributions and service credit. Unions must reimburse the employer within 30 days for all compensation paid to employees while on leave, unless negotiated otherwise.

“Steward” is defined very broadly as:

[A]ny employee designated by the exclusive representative as a representative for unit employees, whether for the unit as a whole or at a particular site, department, or other division of the employer’s operations, regardless of whether the employee is referred to by the exclusive representative as a steward or by a different title.

In other words, the designation of an employee as a “steward” for purposes of this new law is left up to the union, or potentially up to the negotiation process.

The bill faced opposition from many public agency employer groups who argued that it creates a highly expansive form of protected leave for employees without consideration of the potential burdens on employers. Opponents further argued that such leave is traditionally negotiated at the bargaining table where both parties are better positioned to have their interests equally represented.

The new law also provides that employers are not liable for any acts, omissions, or injuries by employees on leave. In the event that liability arises, the union is required to indemnify the employer and hold the employer harmless.

The actual procedures for requesting and granting leave are still left up to negotiations and the mutual agreement of the employer and the union. Generally, the law as written contains significant ambiguities that will likely need to be resolved at the bargaining table, such as what is considered “reasonable.”

This new State legislation may have been intended to counter the effect of the decision issued in Janus v. AFSCME earlier this year. (See 2018 Client News Brief No. 27.) In Janus, the United States Supreme Court held that public

employees may not be compelled to pay fair share fees to public sector unions, as such fees violate the First Amendment. SB 1085 offers a layer of protection for labor organizing at a time when unions are feeling threatened and fear low participation rates.

Existing Law

Protected paid time off for public employees for labor-related reasons is not a new concept. The paid time off granted by SB 1085 is in addition to leave entitlements provided to employees by negotiated agreement and by the various collective bargaining laws in California. Most of the public sector collective bargaining laws in California guarantee employee representatives the right to receive reasonable periods of release time without loss of compensation when meeting and negotiating or conferring and for purposes of processing grievances. This includes, but is not limited to, the Educational Employment Relations Act (EERA) (covering K-12 and community college public school districts), the Higher Education Employer-Employee Relations Act (HEERA) (covering public institutions of higher education), the Ralph C. Dills Act (covering state government employees), and the Meyers-Milias-Brown Act (MMBA) (covering local public agencies). Going beyond these minimum release time entitlements, the Education Code also requires public school or community college districts to grant paid time off to specified represented employees to serve as elected officers or attend important organizational activities; and the MMBA provides paid time off for public agency employees to testify or appear in certain conferences, hearings, and general matters before a personnel or merit commission.

SB 1085 addresses what some may identify as an inconsistency with regard to existing statutory paid time off allowances by creating an entitlement that applies uniformly to stewards of public employee unions (however steward may be defined for the particular organization).

Next Step: Negotiation

With some exception, SB 1085 leaves the technical details up to the employer and union and does not invalidate existing negotiated agreements, which must be reopened for negotiations on the subject of this new leave entitlement upon request of the union.

Public agency employers are encouraged to review their existing collective bargaining agreements to determine if existing language conflicts or can be harmonized with SB 1085 and consider their interests in anticipation of the inevitable requests and proposals that will likely come in from the unions representing their employees.

If you have any questions about SB 1085, 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:

Thomas R. Manniello

Partner

Niki Nabavi Nouri

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.