The Governor took action on several bills affecting public safety labor rights. The Governor vetoed AB 729, which would have protected labor leaders from having to testify about communications with members. In his veto message, the Governor wrote, "I don't believe it is appropriate to put communications with a union agent on equal footing with communications with one's spouse, priest, physician or attorney. Moreover, this bill could compromise the ability of employers to conduct investigations into workplace safety, harassment and other allegations." The Governor's veto underscores the importance of connecting employees with a union lawyer on the onset of disciplinary investigations to ensure privileged communications.
The Governor also vetoed AB 1373 which would have extended the statute of limitations for survivors of public safety officers to file for death benefits related to tuberculosis, cancer, and blood-borne diseases. The bill was co-sponsored by CPF and PORAC.
The Governor signed AB 313 which amended POBR to prohibit disciplining peace officers solely because they are placed on a Brady list. The law does not prohibit employers from disciplining peace officers for the underlying conduct which may have caused them to be put on a Brady list or considering the Brady list for determining how much discipline someone gets. PORAC sponsored the bill. Loni Hancock (D-Berkeley), Donnelly (R-Barstow), Bill Monning (D-Santa Cruz), Tom Ammiano (D-San Francisco), and Mark Leno (D-San Francisco) voted against the bill.
The Governor also signed AB 537 which requires agencies to approve tentative agreements within 30 days, preventing them from delaying final ratification of contracts after the parties have TA'd at the table. The bill also requires that if an MOU has an arbitration clause, the arbitrator- not a court or the agency- must decide if the procedural requirements for arbitration are met.
The Governor also signed AB 1181 which amended the MMBA to require employers give labor leaders reasonable time off for testifying at personnel hearings, PERB hearings, and bargaining. The MMBA already required reasonable time off for meeting and conferring.
Showing posts with label union agent-represented employee privilege. Show all posts
Showing posts with label union agent-represented employee privilege. Show all posts
Monday, October 14, 2013
Tuesday, August 27, 2013
Court Clarifies Peace Officers' First Amendment Rights
In Dahlia v. Rodriguez the Ninth Circuit Court of Appeals expanded first amendment protections for peace officers. The court found speech made outside of the chain of command is protected by the First Amendment because it is made in an officer's capacity as private citizen. The case comes after a number of cases limiting public employees' free speech on topics related to their employment.
Officer Dahlia witnessed complained about alleged inappropriate behavior by other fellow officer to his lieutenant who allegedly threatened him, and other officers to keep quiet about the matter. Dahlia alleged he was warned not to be “a cheese eating rat”. Shortly afterward, he was interviewed in an IA investigation and reported these incidents to his Association president. He also repeated his concerns to a different police department investigating the same incident. Then, the Department put Dahlia w on administrative leave pending discipline.
The court examined each of Dahlia’s actions to decide whether they were protected by the First Amendment or employee speech that is not protected. The Court said reporting to his supervisor was a part of his job duties as a detective investigating a crime and not protected by the First Amendment. The Court said the IA interview was more complicated because if Dahlia disobeyed orders by going to the IA interview, then he acted as a private citizen. The Court said he acted in his capacity as a private citizen when he spoke to his Association president and when he spoke to a different police department.
The court also found Dahlia suffered an adverse employment action as a result of his speech. The threats he received from his supervisor to put him in jail were sufficient to be considered an adverse employment action. Plus, in this case, the administrative leave was considered a punitive action. The court found that loss of overtime, promotional, and experience opportunities made administrative leave an adverse employment action. As a result, the Court found the adverse action would violate the First Amendment.
Officer Dahlia witnessed complained about alleged inappropriate behavior by other fellow officer to his lieutenant who allegedly threatened him, and other officers to keep quiet about the matter. Dahlia alleged he was warned not to be “a cheese eating rat”. Shortly afterward, he was interviewed in an IA investigation and reported these incidents to his Association president. He also repeated his concerns to a different police department investigating the same incident. Then, the Department put Dahlia w on administrative leave pending discipline.
The court examined each of Dahlia’s actions to decide whether they were protected by the First Amendment or employee speech that is not protected. The Court said reporting to his supervisor was a part of his job duties as a detective investigating a crime and not protected by the First Amendment. The Court said the IA interview was more complicated because if Dahlia disobeyed orders by going to the IA interview, then he acted as a private citizen. The Court said he acted in his capacity as a private citizen when he spoke to his Association president and when he spoke to a different police department.
The court also found Dahlia suffered an adverse employment action as a result of his speech. The threats he received from his supervisor to put him in jail were sufficient to be considered an adverse employment action. Plus, in this case, the administrative leave was considered a punitive action. The court found that loss of overtime, promotional, and experience opportunities made administrative leave an adverse employment action. As a result, the Court found the adverse action would violate the First Amendment.
Monday, March 11, 2013
Bill Introduced to Create "Union Agent-Represented Employee Privilege"
Assemblymember Roger Hernández introduced a new bill, AB 729, to create a new privilege, giving union representatives the right to refuse to disclose their communication with union members. The law would create a new evidentiary privilege in California, like attorney-client, priest-penitent, and doctor-patient privilege.
The proposed law would give union representatives the "privilege to refuse to disclose any confidential information he or she may have acquired, whether or not the information was revealed in a communication between the union agent and a represented employee, in attending to his or her professional duties or while acting in his or her representative capacity" with some exceptions. In discipline cases, the employee would have the right to insist the union representative not disclose communications. In all other cases, the union is the sole holder of the privilege.
The proposed law would give union representatives the "privilege to refuse to disclose any confidential information he or she may have acquired, whether or not the information was revealed in a communication between the union agent and a represented employee, in attending to his or her professional duties or while acting in his or her representative capacity" with some exceptions. In discipline cases, the employee would have the right to insist the union representative not disclose communications. In all other cases, the union is the sole holder of the privilege.
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