By now you’ve heard of the passage of AB 119 which mandates union access to new employee orientations. There is a lot of information out there about this bill, but I know that there are still many questions. I’m going to try to cover some of the most frequently asked questions in a series of posts.
When do I need to begin complying with AB 119? Now. Most bills take effect on January 1st. However, AB 119 is part of the “Budget Bill” (Cal. Const. , Art IV, §12) which means it takes effect immediately.
What does my agency need to do? AB 119 places an affirmative burden on public agencies to immediately begin doing three things (Gov. Code sections 3555-3559):
- Providing 10 days’ advance notice of any new employee orientation (Gov. Code §3556);
- Providing to the union the name, job title, department, work location, work, home, personal cellular telephone number, personal email address, and home address of any new employee within 30 days of hire or by the first pay period of the month following hire (Gov. Code §3558);
- Providing to the union the information in #2 every 120 days for all employees(Gov. Code §3558).
If you haven’t already, then your agency should put into place procedures to comply with these three requirements.
AB 119 also has a requirement that, upon request, the parties bargain over the structure, time, and manner of access of the union to a new employee orientation. But again, this is only upon request.
How does the notice requirement work if my agency’s orientations are individualized and not in a group setting? The bill leaves such details for negotiation between the parties. Getting clarification on this issue might be one reason a public agency would want to request to bargain over these issues affirmatively, as opposed to waiting for a request from the union. But in the meantime, my advice is to comply by providing the union ten day’s advance notice of all orientations, even individualized employee orientations. This assumes that the individualized employee orientation is the only one conducted by the agency. If the agency conducts a group orientation and also an individualized one, I think giving notice of the group orientation is sufficient.
What if my agency’s orientation is exclusively online, and conducted at the leisure of the employee? The bill expressly provides that online employee orientations are covered, but beyond that, the bill leaves details of compliance subject to negotiation between the parties. Again, getting clarification on this might be one reason a public agency would want to request to bargain over these issues affirmatively. But until then, my advice is the comply by providing the ten day’s advance notice if you know the date of the online orientation. What if the online orientation is done by the employee at his or her leisure? For example, the employee is given a link and told to complete the orientation within a certain amount of time. My advice is to try to comply as much as possible. In this example, you can notify the union that a new employee has been hired, that the employee has been told to complete online orientation, and remind the union that the employer is willing to meet and confer over further details upon request.
With respect to providing home addresses, email addresses, and telephone numbers, what about an employee’s right to privacy? The bill makes mention that the provision of such information shall be consistent with the privacy requirements in County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905. In that case, the California Supreme Court held that under the MMBA, a union has a presumptive right to employee contact information such as home addresses and telephone numbers. (Notably, personal email addresses and personal cell phone numbers were not an issue in the Los Angeles case.) The Court also held that with respect to the right of privacy, the balancing of interests favors disclosure to the union. But the Court did allow that the balancing of interests may “in some cases, tip in favor of privacy when an individual employee objects and demands that home contact information be withheld.” So what’s the bottom line? I think that there can be an opt-out process put in place to prevent some of this information from being provided to the union if the employee objects. The op-out process, or at least some aspects of it, will likely be subject to negotiations with the union. It’s a delicate balance and an area where legal counsel should probably be consulted.