Category Archives: E-Alert

NEW LAW MANDATES UNION ACCESS TO NEW EMPLOYEE ORIENTATION

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.

Supreme Court Refuses to Review Flores v. City of San Gabriel

The U.S. Supreme Court has denied the petition for writ of certiorari filed by the City of San Gabriel in Flores v. City of San Gabriel. The petition sought to reverse the Ninth Circuit’s ruling with respect to two issues: 1) the inclusion of cash paid to employees in lieu of health benefits contributions from the regular rate for purposes of calculating overtime under the Fair Labor Standards Act (FLSA), and 2) the standard for finding a “willful” violation of the FLSA, which increases the statute of limitations from two years to three years. As is customary, there was no explanation provided by the Court in denying the petition for writ of certiorari.

The denial of review means that the Ninth Circuit’s ruling remains binding on all employers in California. More discussion of the Ninth Circuit’s ruling can be found here. For more information contact Jon Holtzman (jholtzman@publiclawgroup.com, 415-678-3807), Art Hartinger (ahartinger@publiclawgroup.com,510-995-5805), or Kevin McLaughlin (kmclaughlin@publiclawgroup.com 510-995-5806).

Briefing on Petition for Writ of Certiorari Now Complete in Flores v. City of San Gabriel

On April 25, 2017, the City of San Gabriel filed its reply brief in support of its petition for writ of certiorari to the U.S. Supreme Court, in the case known as Flores v. City of San Gabriel.  Briefing on the petition is now complete.  It is anticipated that the petition will be considered at the Court’s May 11, 2017 conference, with a ruling on the petition or call for the views of the Solicitor General to follow shortly thereafter.  Art Hartinger, Jon Holtzman, and Kevin McLaughlin from Public Law Group are co-counsel representing the City in the Supreme Court proceedings.

The petition seeks to reverse the Ninth Circuit’s ruling with respect to two issues.  First, the City contends that cash paid to employees in lieu of health benefits contributions should be excluded from the regular rate for purposes of calculating overtime under the Fair Labor Standards Act (FLSA).  Second, the City contends that the Ninth Circuit’s standard for finding a “willful” violation of the FLSA, which increases the statute of limitations from two years to three years, fails to comply with Supreme Court precedent.

The City’s Petition for a Writ of Certiorari is available here. The City’s reply brief is available here.  The amici curiae brief filed by the International Municipal Lawyers Association, International Public Management Association for Human Resources, National Public Employer Labor Relations Association, National School Boards Association, California State Association of Counties, League of California Cities, and California Special Districts Association in support of the City’s petition is available here.  The amici curiae brief filed by the Chamber of Commerce of the United States of America and the National Federation of Independent Business in support of the City’s petition is available here.

For more information contact Jon Holtzman (jholtzman@publiclawgroup.com, (415-678-3807), Art Hartinger (ahartinger@publiclawgroup.com,510-995-5805), or Kevin McLaughlin (kmclaughlin@publiclawgroup.com 510-995-5806)

California Supreme Court Accepts Review of Second Case Holding: Public Employers May Make “Reasonable” Modifications to Vested Pension Benefits, Without Requiring a “Comparable” New Benefit

Cases To Be Discussed At State Bar 2017 Labor And Employment Public Sector Conference, Friday, April 21, 2017, 10:25-11:40 am, Claremont Resort, 44 Tunnel Road, Berkeley.

On April 12, 2017, the California Supreme Court accepted review of Cal Fire Local 2881 et al. v. California Public Employees’ Retirement System, et al, 7 Cal.App.5th 115 (2016).

This is the second case the Court has accepted for review that involves California’s “vested rights” doctrine. Last year, the Court accepted review of Marin Association of Public Employees v. Marin County Employees’ Retirement Association, 2 Cal.App.5th 674 (2016). Historically, some courts have invoked the vested rights doctrine to limit the ability of public employers to alter pension benefits for public employees, even when the benefits became financially unsustainable.

In the Marin case, the Court of Appeal, First Appellate District, Division Two, held that the decision by the Marin County Employees’ Retirement Association (MCERA) to prospectively eliminate pension benefits attributable to “stand by” and other time was “reasonable.” Contrary to plaintiffs’ contentions, the Court found that MCERA was not required to offer a “comparable” new benefit to employees.

In December 2016, in Cal Fire Local 2881, Division Three of the First Appellate District joined Division Two, and held, as an alternative holding, that the state had the power to eliminate the purchase of “air time” because the modification was “reasonable” and did not require the offer of a “comparable” benefit to employees.

The California Supreme Court may hear the Cal Fire case first, because the Court is holding the Marin case until the Court of Appeal decides a trio of other cases involving AB 197, the statute at issue in the Marin case.

These cases will be the topic of a panel discussion at the State Bar 2017 Labor and Employment Public Sector Conference, Friday, April 21, 2017, 1:25-11:40 am, Claremont Resort, 44 Tunnel Road, Berkeley.

Background – Purchase of “Air Time.”

Under Government Code section 20909, enacted in 2003, eligible public employees had the option to purchase at cost up to five years of service credit. Purchase of this service credit, called “air time,” enabled employees to increase their pensions.

As of 2013, the state legislature eliminated the option to purchase “air time” as part of the Public Employees’ Pension Reform Act of 2013 (PEPRA), designed to strengthen the state’s public pension system by eliminating pension “spiking.”

A number of unions sued, claiming that the elimination of the option to purchase “air time” violated their vested rights under the contracts clause of the California constitution. (Cal. Const., art. 1, section 9.)

The Court found no “clear” intention to create a vested right to “air time.”

 In Cal Fire Local 288, the Court of Appeal first applied the standards enunciated in Retired Employees Assn. of Orange County, Inc. v. County of Orange, 52 Cal.4th 1171, 1186, 1189, which held that plaintiffs carry the “heavy burden” of “clearly” proving that the legislature intended to grant a vested right.

 The Court of Appeal found that there was “nothing in either the text of the statute … or its legislative history” that unambiguously stated an intent to create a vested benefit. Rather the Court held that Section 20909, “does no more than permit an eligible member” to “elect” to make the additional contributions to purchase airtime. (Cal Fire at 126.) The Court declined “to add to this straightforward reading of this statutory phrase any promise by the Legislature not to modify or eliminate the option to purchase service credit” and stated that the legislature would have “used much clearer language if it had in fact harbored such intent.” (Id. at 127.)

The Court found a “reasonable” modification, with no requirement to provide a “comparable” new advantage.

 The Court of Appeal also held that, under Supreme Court standards, a public employer had the right to make “reasonable” modifications to an employee’s pension rights. Quoting Betts v. Board of Administration, 21 Cal.3d 859, 864 (1978), the Court stated that: “To be sustained as reasonable, alternations of employees’ pension rights must bear some material relation to the theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.”

Importantly, the Court agreed with Division Two of the First Appellate Division in rejecting the contention that the state was required to prove a “comparable advantage” to offset the loss of the benefit: “We agree with this conclusion reached by our colleagues, and as such, reject plaintiffs’ claim that, absent proof that CalPERS members were granted a comparable advantage, the Legislature’s elimination of the airtime service credit must be deemed constitutionally barred.” (Cal. Fire at 131)

The Court concluded with the affirmation that public employees are entitled “only to a ‘reasonable’ pension, not one providing fixed or definite benefits immune from modification or elimination by the governing body.” (Id. at 132.)

For more information, please contact Linda Ross (lross@publiclawgroup.com, 510-995-5807) or Jon Holtzman (jholtzman@publiclawgroup.com, 415-678-3807).