On Tuesday, June 27, 2017, Governor Brown signed Assembly Bill 119 into law. The law applies to public agencies including cities, counties, special districts, trial courts, state civil service agencies, the Los Angeles County Metropolitan Transportation Authority, public schools (K-12), community colleges, California State Universities, Universities of California and school districts. AB 119 adds Section 3555 to 3559 to the California Government Code to amend the labor relations statute to the jurisdictions listed above. Additionally, it amends Sections 6253.2 and 6254.3 of the California Public Records Act. The law requires that 1) an exclusive representative (e.g., recognized public employee unions, employee associations) be provided the right to access new employee orientations and to compel collective bargaining processes related to the structure, time and manner of such orientation access and 2) exempts public employees’ personal email addresses from disclosure under the California Public Records Act. The law went into effect immediately upon the Governor’s signature.
Exclusive Representative Access to New Employee Orientation
AB 119 states that “the ability of an exclusive representative to communicate with the public employees it represents is necessary to ensure the effectiveness of state labor relations statutes, and the exclusive representative cannot properly discharge its legal obligations unless it is able to meaningfully communicate through cost-effective and efficient means with the public employees on whose behalf it acts. In most cases, that communication includes an opportunity to discuss the rights and obligations created by the contract and the role of the representative, and to answer questions.”
The law requires each public employer to provide the exclusive representative mandatory access to the new employee orientations of the employees it represents.
Questions and Answers Regarding the New Law:
Q: What is a “new employee orientation”?
A: “New employee orientation” means the onboarding process of a newly hired public employee in which employees are advised of their employment status, rights, benefits, duties and responsibilities, and any other employment related matters. It does not matter which medium the orientation takes place in, whether it is in person, online, or through other mediums.
Q: Who is considered a newly hired public employee?
A: The definition includes any new employee regardless of whether they are being hired to a permanent, temporary, full time, part time, or seasonal position. However, the right to access new employee orientations is limited to bargaining unit employees represented by that exclusive representative only.
Q: Does the employer need to provide the exclusive representative with any information about the newly hired public employees before the orientation?
A: Yes. Within 30 days of hiring the employee, the employer must provide the representative with the name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses on file with the employer, and the home address of the new hire. The employer must also provide the representative with a list of all of that information for all employees in the bargaining unit at least every 120 days unless more frequent or more detailed lists are required by an agreement with the exclusive representative.
Q: How far in advance does an employer need to let the exclusive representative know about the orientation?
A: Employers are required to provide the exclusive representative with at least 10 days notice of the orientation. Employers do not have to give 10 days notice of an orientation if there is an urgent need that is critical to the employer’s operations that was not reasonably foreseeable. The purpose of this notice period is to give the employer and representative an opportunity to negotiate over the details of the new employee orientation.
Q: In what way does an employer have to provide the exclusive representative access to new employee orientations?
A: The new law requires that a public employer and the exclusive representative negotiate over the “structure, time, and manner” of the access of the exclusive representative to a new employee orientation. Generally speaking, this would encompass the following issues:
At what time during the employee orientation an exclusive representative will be provided access to new employees (beginning, middle, end, etc.).
How much time the exclusive representative is provided to meet with the new employees.
The content of what the exclusive representative will discuss with new employees.
Whether new employees are required to attend the part of the orientation with the exclusive representative.
How to address exclusive representative access where new employee orientations include employees from multiple bargaining units.
Q: What happens if the employer and the exclusive representative can not come to an agreement about the structure, time, and manner of access to the representative to the new employee orientation?
A: If an agreement is not reached either party can make a demand to participate in binding interest arbitration. Binding interest arbitration under this bill provides that the dispute be submitted to a third-party arbitrator who is then authorized “to approve either party’s proposal in its entirety, to approve a proposal using both the employer’s and exclusive representative’s final proposals, or to modify the proposals by the parties.” The decision of the arbitrator is binding. The parties will equally share all costs of arbitration.
Exemption of public employees’ personal email addresses from disclosure under the California Public Records Act
The fundamental principle of the Public Records Act is that governmental records shall be disclosed to the public, upon request, unless there is a specific reason not to do so. Even though the law strongly emphasizes the need for the public to have access to governmental records, the law still recognizes that an individual’s privacy is of utmost importance. Where personal or intimate information is extracted from a person employed by the government (e.g., a government employee or appointee, or an applicant for government employment/appointments a precondition for the employment or appointment), a privacy interest in such information is generally recognized.
The Public Records Act already allows agencies to withhold the home addresses, home telephone numbers, personal cellular telephone numbers, and birthdates of all employees of a public agency. This information is not considered public records. The new law now adds employees’ personal email addresses to the list of information that may be withheld by the employer unless the employee uses the email address to conduct public business, or necessary to identify a person in an otherwise disclosable communication.
Given that the California Supreme Court, in City of San Jose v. Superior Court (Smith), recently held that communications by a public employee concerning public business on a personal account, such as email, is subject to disclosure under the California Public Records Acts, it is important that public agencies develop proper policies and procedures regarding the use of personal devices by employees and officials to conduct public business. In addition to developing strong policies, agencies should also provide training to their employees on these policies and document the training.
AB119 adds Section 3555 to 3559 to the California Government Code and amends Sections 6253.2 and 6254.3 of the California Public Records Act.