Governor Gavin Newsom signed Senate Bill (SB) 270 into law on September 27, 2021. This bill becomes operative on July 1, 2022, and amends Government Code section 3558 to create an enforcement mechanism for the Public Employee Communication Chapter (PECC) (Gov. Code § 3555, et seq.), under which public employers are required to provide the exclusive representative or recognized employee organization for the bargaining unit with certain contact and employment information of newly hired and existing unit members.
Existing requirements under the PECC
Under the PECC (Gov. Code § 3558(a)), public employers are required to provide the exclusive representative or recognized employee organization for the bargaining unit (hereinafter, “union”) with the following information about newly hired employees:
- Job title;
- Work location;
- Work, home, and personal cell phone numbers;
- Personal emails on file with the employer; and
- Home address.
The information above must be provided to the union within 30 days of the date an employee is hired or by the first pay period of the month following the date of hire. Public employers must also provide the union with the above-listed information for all employees in the bargaining unit at least every 120 days, unless more frequent or detailed lists are required by an agreement (e.g., an MOU) between the employer and the union. The employer and the union can also establish different time intervals for the provision of information about newly hired employees. Currently, however, there is no enforcement mechanism for the reporting requirements set forth in Government Code section 3558, and public employers are not subject to any sanctions for violating the PECC.
Enforcement mechanism introduced by SB 270
Beginning July 1, 2022, SB 270 authorizes public employee unions to file an unfair labor practice charge with the Public Employment Relations Board (“PERB”) against employers who fail to comply with the reporting requirements of the PECC. Before filing an unfair practice charge under SB 270, the union will be required to give written notice to the public employer of the alleged violation of Government Code section 3558, including any facts and theories supporting the violation. However, the filing process will differ depending on the type of violation being alleged.
Inaccurate or Incomplete List
If a public employer provides the information described above to the union, and the union believes the list is either inaccurate or incomplete, the union must give notice of the violation and allow the employer to cure the alleged violation within 20 calendar days of receiving written notice of the violation. Once the employer has taken steps to correct the violation, the employer must provide written notice to the union by certified mail or electronically of the actions taken. The notice must be sent to the union within the 20-day cure period. If the union nevertheless believes the alleged violation has not been cured (i.e., the employer has not provided an accurate and complete list), the union may file an unfair practice charge with PERB after the cure period has elapsed.
Importantly, SB 270 gives employers the opportunity to cure a noticed violation of the PECC up to three (3) times in any 12-month period. Thus, if an incomplete/inaccurate violation is alleged more than three times in one calendar year, the employer is not entitled to any time to cure the violation on the fourth (or any subsequent) occasion.
Failure to Provide Information
If, on the other hand, the union alleges a violation other than that the employer has provided an inaccurate or incomplete list of employees’ contact information, including a complete failure to submit a list of newly hired employees or a list of all bargaining unit members within the time period prescribed under the PECC, the employer is not entitled to any opportunity to cure the violation, irrespective of the number of times a violation arises. In such circumstances, the union may file the charge with PERB immediately after issuing written notice of the violation to the employer.
Penalties introduced by SB 270
In addition to any other remedy provided by law, a public employer who is found to have violated Government Code section 3558 will be subject to a civil penalty not to exceed ten thousand dollars ($10,000), the actual amount of which is to be determined by PERB. In determining the amount of the penalty, PERB must consider the following criteria: (1) the employer’s annual budget; (2) the severity of the violation; and (3) any prior history of violations by the same employer. Any penalty assessed against the employer will be paid to the State’s General Fund, and not to the union bringing the unfair practice claim.
SB 270 also requires PERB to award attorney’s fees and costs to the prevailing party. For purposes of the award, costs and fees will accrue from the inception of proceedings before PERB’s Division of Administrative Law until final disposition of the charge by PERB. However, no attorney’s fees or costs may be awarded for any proceeding before PERB that challenges the dismissal of an unfair practice charge by the PERB’s Office of the General Counsel. In addition, if PERB initiates enforcement proceedings in superior court, or is required to defend a PERB decision involving Government Code section 3558 after a party seeks judicial review, SB 270 requires the court to award PERB attorney’s fees and costs if PERB is the prevailing party.
Although SB 270 does not become effective until July 1, 2022, to avoid any potential penalties for a violation of Government Code section 3558, public agencies should review and confirm they are providing accurate, complete, and timely employee contact information and new hire lists to their unions.
If you have any questions regarding SB 270, please contact your OMLO attorney.
OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.