Gov. Brown Signed A.B. 119 Providing California Public Employee Unions Enhanced Access to New Employees

On June 27, 2017, Governor Brown signed Assembly Bill 119 mandating that public employers within PERB's jurisdiction provide recognized labor representatives expanded access to newly-hired employees.  This enhanced access is accomplished by mandating that an employer shall provide the union representative access to new employee orientations and to employee contact information.

Agencies must provide the union notice of any new employee orientation with at least 10 days advance notice.  The employer must also provide 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 and a list of that information for all employees in the bargaining unit at least every 120 days unless more frequent or more detailed lists are negotiated between the parties.

The disclosure of contact information is expressly modeled after our Supreme Court's holding in County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 90, that the privacy clause of state constitution did not excuse the county from disclosing represented employees' contact information to the union.  The statute also adopts the privacy protections set forth in County of Los Angeles.

The legislation also establishes important bargaining obligations that unions should understand. Government Code Section 3557 provides that upon the request of either party, "the parties shall negotiate regarding the structure, time, and manner of the access of the exclusive representative to a new employee orientation. The failure to reach agreement on the structure, time, and manner of the access shall be subject to compulsory interest arbitration pursuant to this section."  Either party can request arbitration over unresolved access issues within 45 days after the first meeting between the parties or 60 days from the first request to negotiate.  

This legislation was enacted in anticipation of potential changes to or elimination of fair share procedures should the Supreme Court decide to hear another challenge to fair share. In Friedrichs v. California Teachers Association, the Court deadlocked 4-4, leaving in place a Ninth Circuit ruling upholding fair share procedures. Regardless of the fate of fair share, this new law provides labor organizations important new tools to increase their voluntary membership ranks and will equally benefit unions that do not have fair share procedures in place.   

Dash Camera Video Not Part of Officer’s Personnel Record, Court Rules

A California appeals court ruled this week that dash camera footage is not part of an officer’s confidential personnel record, even though it was used in an internal affairs investigation against the officer. The Court of Appeal ruled in City of Eureka v. Superior Court (Thadeus Greenson) (1st Dist., July 19, 2016) that Pitchess statutes do not protect this kind of video footage from being released to the public.

Eureka Police Sergeant Adam Laird and other officers arrested a juvenile suspected of gang activity. After the incident, the Eureka Police Department opened an internal affairs investigation into Sergeant Laird’s conduct, eventually deciding to fire him. And the Humboldt County District Attorney’s Office charged Laird with misdemeanor assault by a police officer without lawful authority and making a false police report. Both investigations alleged that Laird used excessive force against the suspect, including pushing him to the ground and then kicking or stomping on him repeatedly.

A key piece of evidence in both of these investigations was the video recorded by the dash camera in another officer’s vehicle. This video apparently recorded the whole interaction between Sergeant Laird and the juvenile suspect. Experts hired by both the prosecution and Laird’s defense attorney determined Laird’s use of force was justified under the circumstances. The prosecution dropped the charges and the Department halted its termination of Laird.

However, a local newspaper reporter then filed requests for the video footage. The reporter claimed the video was a public record. A trial judge in Humboldt County agreed and ordered the City of Eureka to release the video. The City appealed the judge’s order, arguing the video was part of Laird’s confidential personnel file and could only be released through the procedures required by the Pitchess statutes.

The Court of Appeal rejected the City’s argument and affirmed the order to release the video. The Court ruled that because the video was recorded before any investigation had begun, it was an independent record and was not part of Laird’s personnel file. Because the video was merely considered during the investigation and was not generated by it, the video was not a record related to “employee advancement, appraisal, or discipline.”

The Court relied on the major decision by the California Supreme Court two years ago in Long Beach Police Officers Association v. City of Long Beach (2014). In that case, the Supreme Court ruled that Long Beach could not withhold the identity of a police officer who had been involved in a shooting, but must disclose it to requesting newspapers. Here, the Court of Appeal ruled that dash camera footage is similar to an officer’s identity and must be released to the public.

The Court of Appeal’s decision is a serious setback to the privacy interests of peace officers across the state. Under the ruling, potentially all dash camera and body camera footage could be subject to public release.

New Law Bars Public Employers From Searching Cell Phones, Personal Devices Without Warrant

On October 8, 2015, Governor Brown signed S.B. 178, the California Electronic Communications Privacy Act (CalEPCA).  CalEPCA prevents a government entity from compelling disclosure of electronic data without warrant. The Act covers both personal devices and online services that store personal data. To waive this protection, the authorized user must give consent to the government agency seeking the information.

Public safety agencies often have policies that apply to "personal communication devices" (PCD). It's likely, however, that many of these sections violate CalEPCA.  For example, some Lexipol PCD policies used by many departments permit administrative searches of both department-issued and personally owned devices.  Under these policies, the employer can track the employee's location, inspect message content, and access online information.  Some Departments have attempted to compel employees to turn over text messages or phone logs without a warrant.

Now, absent an emergency or the employee's consent, the agency needs a warrant to get any of this information. Many public safety departments will have to change their current policies to conform to CalEPCA. As a mandatory bargaining subject, the department and union will have to "meet and confer" to adopt a new policy governing PCDs.

California Court of Appeals Limits Use of Secret Recordings in Administrative Investigations

In Telish v. State Personnel Board the California Court of Appeal clarified when an employer may use secret recordings. It is against the law for an employer to secretly record its employees. An employer may secretly record its employees if it is investigating a crime. But an employer may not fake a criminal investigation in order to secretly record its employees.

A police chief reported suspected criminal behavior by a DOJ employee to the the DOJ. The DOJ began a criminal investigation of Telish’s conduct. As part of that investigation, the DOJ asked the woman to record telephone conversations with Telish. These recordings were made without Telish’s consent.

The DOJ completed its investigation and submitted its findings to the Orange County District Attorney. The district attorney declined to prosecute. But the DOJ fired the employee because he violated company rules. The DOJ relied on the secret tape recordings to fire employee. The employee sued the DOJ saying the recordings violated California statutes.

The California Court of Appeal for the Second District upheld the termination. California Penal Code section 632 states one cannot secretly record someone. California Penal Code section 633 provides an exception to this rule. A law enforcement agency may record someone without their consent if the recording is part of a criminal investigation. Furthermore, a law enforcement agency may direct a private citizen to make the recording. Here, the accuser recorded the employee as part of a criminal investigation. Thus, the Court of Appeal ruled the recordings were appropriate under the exception in California Penal Codesection 633.

The employee argued the statutes prevented the use of the recordings in an administrative termination. The Court of Appeal did not agree. Nothing in the statutes prevents the employer from using a recording made as part of a legitimate criminal investigation in an administrative investigation. Here, the DOJ investigation originally focused on criminal activities. Therefore, when made, the recordings were pursuant to a valid criminal investigation. Thus, California Penal Code section 633 applies and the recordings may be used as part of an administrative investigation.

An employer may not lie and label an investigation “criminal” in order to secretly record its employees. There must be real facts that demonstrate an on-going criminal investigation. The recording must be made pursuant to that investigation.

Controversial Cell Phone Surveillance System Prompts Lawsuits Against Government Agencies

A controversial cell phone surveillance system, known as the StingRay, has prompted lawsuits against 40 federal and local government agencies. The StingRay allows law enforcement agencies to track criminals by simulating a cell phone tower. It is capable of identifying phone users and capturing communications within its range. Certain groups have raised privacy concerns for bystanders who are not part of a criminal investigation.

Last year, the American Civil Liberties Union (ACLU) requested documents under the California Public Records Act from the Anaheim Police Department and the Sacramento County Sheriff's Department describing their StingRay use. The ACLU says it wants to find out who is using the devices, what policies govern the uses, and what types of crimes it is being used to pursue. When the agencies refused to disclose certain documents, the ACLU brought suit. Similar lawsuits have been filed across the country as certain groups seek more information about the StingRay and its role in government agencies.