Governor Signs AB 2850; Vetoes AB 2114

On September 29, 2020, Governor Newsom took action on the two bills affecting PERB.

AB 2850: The Governor signed this bill into law. AB 2850 brings the Bay Area Rapid Transit District (BART) under PERB’s jurisdiction.

AB 2114: The Governor vetoed this bill. Here is his veto message:

To the Members of the California State Assembly:

I am returning Assembly Bill 2114 without my signature.

This bill would require certain higher education employers to provide an
arbitration or hearing officer process to challenge a termination of employment or a disciplinary action for medical and dental interns and residents. The bill excludes disciplinary actions and terminations based on academic or clinical matters, making arbitration available only for matters within the scope of representation.

These residents and interns represent our State’s pipeline of medical
professionals, and they have been on the frontlines of the COVID-19 pandemic. They deserve an opportunity to challenge a disciplinary action or termination of employment that may be wrongful and that could potentially jeopardize their professional career. However, I believe that the definition of “academic” and “clinical” in this bill is too narrow and does not fully consider the various criteria used in determining a resident’s readiness to safely practice. I encourage the affected parties to agree upon a definition that both protects employees’ due process rights and patient safety.

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PERB Bills Awaiting Action by Governor

To my knowledge there are two bills awaiting action by the Governor that affect PERB:

AB 2850: Brings the Bay Area Rapid Transit District (BART) under PERB’s jurisdiction. As introduced, this bill would have placed BART fully under the Meyers-Milias-Brown Act. However, the bill was amended to keep BART under its own statutory scheme but to place it under PERB’s jurisdiction for enforcement.

AB 2114: Amends HEERA to allow medical residents to appeal disciplinary actions that are not based on academic or clinical matters to an impartial arbitrator.

The Governor has until September 30, 2020, to sign or veto these bills.

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AB 1867: Covid-19 Supplemental Paid Sick Leave

On September 9, 2020, Governor Newsom signed AB 1867 which provides paid sick leave to certain employees excluded from coverage by the federal Families First Coronavirus Response Act (FFCRA).

Most of the law does not apply to the public sector, but there is one part that does. AB 1867 adds Labor Code section 248.1 which provides 80 hours of supplemental paid sick leave to employees excluded from the FFCRA as “health care providers” or “emergency responders.” This section expressly applies to the public sector. The criteria and application of the paid sick leave generally follow the FFCRA but does not match it entirely. So if you’re a public or private agency that exempted health care workers from the FFCRA you’ll want to take a look at the law’s requirements.

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“Make Whole” May No Longer Be Enough

Unions have long complained that PERB’s remedial orders are insufficient.  For example, the remedy for an unlawful unilateral change is to return the parties to their prior positions (i.e. status quo ante). However, the unions often argue that merely returning to the status quo ante isn’t sufficient to remedy the harm that has occurred or to serve as a deterrent in the future. Judging from several cases issued in the last year, it appears that the Board is starting to agree. Here are several cases dealing with remedies that practitioners should take note of….

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Marysville Rule: Weakened But Still Alive

City of Culver City (2020) PERB Dec. No. 2731-M (Issued on 6/10/20)

At issue in this case was a change by Culver City’s police department regarding when employees take a lunch break. For many years, the police department allowed employees to combine their two 15-minute paid rest periods into a single half-hour paid meal period in lieu of an unpaid meal period of one hour. The city relied on contract language to make a change requiring employees to take an unpaid meal period of one hour. Thus, before the change an employee on a 4/10 work schedule worked 10 hours a day, which included a 30-minute paid lunch period. After the change, the same employee’s schedule was 11 hours, which included an unpaid meal period of one hour.

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