NEW LAW MANDATES UNION ACCESS TO NEW EMPLOYEE ORIENTATION

June 30, 2017

NEW LAW MANDATES UNION ACCESS TO NEW EMPLOYEE ORIENTATION

The 2017-18 state budget includes a new requirement that public employers allow union representatives to meet with employees during new employee orientation. The bill, AB 119, appears to be an attempt to insulate unions from the potential loss of agency or fair share fees should the U.S. Supreme Court declare those fees unconstitutional. And because it passed as part of the budget, the new law takes effect on July 1, 2017.
WHAT AB 119 REQUIRES

  • The public employer must provide the union with 10 days’ notice of a new employee orientation except when the need for orientation is urgent and unforeseeable;
  • Public employers must meet and confer with unions over the structure, time, and manner of union access to new employee orientation;
  • If no agreement is reached, the dispute will be resolved through compulsory interest arbitration;
  • The arbitrator’s decision will be final and binding;
  • The parties must reopen their contract or execute a side letter agreement to incorporate their union access agreement or an interest arbitration decision;
  • The employer must provide unions with the name, home address, personal email address, and personal cell phone number of all new employees within 30 days of hire; and
  • The employer must provide unions with the name, home address, personal email address, and personal cell phone number of all employees at least every 120 days.

 

POTENTIAL ISSUES IMPLEMENTING AB 119

  • If the employer doesn’t get all new employees in a room for an orientation meeting, what qualifies as “new employee orientation”? Although AB 119 provides a general definition, it seems this is something to be worked out in negotiations or interest arbitration, or through litigation.
  • What if employees don’t want to meet with the union? Employees have a right not to participate in union activity. But AB 119 doesn’t contain an opt-out provision to exercise that right so presumably uninterested employees will have to sit through the union’s pitch involuntarily.
  • What if employees ask the employer’s representative(s) during orientation about things the union said? Could the employer follow the union’s presentation with a presentation about what it means for them not to join the union? These situations likely fall under the rule that the employer can speak freely as long as the speech doesn’t make a threat or promise a benefit. But would PERB apply the rule the same in the orientation setting where the union has just spoken?
  • In interest arbitration under AB 119, a party cannot submit a proposal that was not its final proposal in negotiations. But AB 119 doesn’t require the parties to reach impasse before demanding interest arbitration. What if you haven’t made your final offer when the other party demands arbitration? Are you stuck with whatever your last offer was?
  • The arbitrator’s decision must issue within 10 days of the close of the hearing. It is almost impossible for an arbitrator to render a decision within the timelines specified for compulsory factfinding under the MMBA. Perhaps because this is a limited issue, 10 days is enough time for a decision. But expect the arbitrator to ask for more time.
  • AB 119 says the personal employee information that employers must give the unions is subject to privacy protections under the California Supreme Court’s County of Los Angeles decision. That decision allows employers and unions to negotiate procedures where employees can opt-out of having their personal information given to the union. Is this an option for the information that must be provided under these new bills?

Because the law is unclear on these issues, and potentially others, we recommend consulting with experienced labor counsel before initiating negotiations with your employee organizations over new employee orientations.