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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PERB Launches Electronic Filing System

The Public Employment Relations Board has launched a new electronic filing and case management system. The “ePERB Portal” provides an additional way to initiate new cases, file and access documents in existing cases, and can check the status of any matter pending before PERB. Note, case records predating November 1, 2019 are still not fully digitized and accessible on ePERB. To use the ePERB Portal you have to sign up for a free account here. However, individuals without an account can still check the “docket” and scheduled events for cases.

While the ePERB Portal will quickly become the preferred method to file with PERB, practitioners may still file in accordance with any method authorized in PERB’s regulations.

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