With the adoption of the state budget on June 27, 2017, Governor Brown signed into law Assembly Bill (“AB”) 119, which requires public employers subject to the Educational Employment Relations Act (“EERA”), which includes school districts and county offices of education, to provide representatives of recognized employee organizations and exclusive representatives mandatory access to new employee orientations. AB 119 adds sections 3555-3559 to the Government Code, and amends sections 6253.2 and 6254.3 of the California Public Records Act.

LEGAL UPDATE

July 12, 2017

To: Superintendents, Member School Districts (K-12) – Humboldt County

From: Ellie R. Austin, Schools Legal Counsel

Subject: Union Access to New Employee Orientation (AB 119)

Memo No. 19-2017

New Government Code sections 3555-3559 are attached to this Legal Update for ease of reference.

What is new employee orientation?

New employee orientation is defined as the “onboarding process” in which new employees are advised of their employment status, rights, benefits, duties, responsibilities, and other employment-related matters.[1] The onboarding process may be in person, online, or via other means.[2]

What must the employer do?

The employer must negotiate with the exclusive representative the structure, time, and manner of access to new employee orientation, subject to the provisions in Government Code section 3557. If the parties fail to reach an agreement, the dispute shall be subject to compulsory interest arbitration.[3] (See section 3 for more details regarding the required arbitration.)

The employer must provide the exclusive representative at least 10 days’ advance notice of the orientation, unless there is an “urgent need critical to the employer’s operations that was not reasonably foreseeable.”[4]

Within 30 days of hire or by the first pay period of the month following hire, the employer must provide the exclusive representative with the name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses on file with the employer, and home address of newly hired employees.[5] A newly hired employee is defined as “any employee, whether permanent, temporary, full time, part time, or seasonal, hired by a public employer, to which this chapter applies and who is still employed as of the date of the new employee orientation.”[6]

The employer must also provide the exclusive representative with a list of that contact information identified in subsection (c) above, for all employees in the bargaining unit at least every 120 days, unless the parties agree otherwise.[7] We recommend districts negotiate that such information will be provided only upon the union’s request.

What is the process for negotiating union access to new employee orientation?

Subject to new Government Code section 3557, the parties must negotiate the structure, time, and manner of exclusive representative access to new employee orientation.

If the parties cannot resolve a dispute regarding access to new employee orientation within 45 days of the parties’ first meeting, or within 60 days of the initial request to negotiate (whichever comes first), either party may demand to participate in compulsory interest arbitration.[8] This timing requirement means that if the exclusive representative requests to negotiate, the district must do so outside of the normal negotiations cycle.

Note that compulsory interest arbitration is not the typical statutory impasse process available for disputes related to collective bargaining. Rather, it is a separate arbitration procedure provided for in the new section 3557 (attached). Under this process, the arbitrator is appointed by the State Mediation and Conciliation Service using its process to obtain a panel of arbitrators.[9] Section 3557 outlines the procedure for selecting an arbitrator.[10] The arbitrator’s decision must consider the criteria outlined in the statute,[11] must provide the exclusive representative with reasonable access to new employee orientations,[12] and is final and binding on the parties.[13] The parties bear the costs of arbitration equally.[14]

If the parties currently have a memorandum of understanding (“MOU”) or collective bargaining agreement (“CBA”) article related to union access to new employee orientation, the union’s request to meet and confer on this subject will reopen the existing MOU or CBA article for negotiation.[15] The parties may agree to negotiate a side letter or similar agreement in lieu of reopening the existing MOU or CBA.[16]

Can the parties negotiate different terms by which to grant union access to new employee orientations?

Yes, the public employer and exclusive representative may enter into an agreement that deviates from the statute. However, in the absence of such an agreement, the new provisions of the statute apply.[17]

Who enforces this statute?

The Public Employment Relations Board (“PERB”) has jurisdiction to hear alleged violations of Government Code sections 3555-3559.[18]

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

[1] Cal. Gov’t Code § 3555.5(b)(3).

[2] Id.

[3] Cal. Gov’t Code § 3557(a).

[4] Cal. Gov’t Code § 3556.

[5] Cal. Gov’t Code § 3558.

[6] Cal. Gov’t Code § 3555.5(b)(4).

[7] Cal. Gov’t Code § 3558.

[8] Cal. Gov’t Code § 3557(b)(1)(A).

[9] Cal. Gov’t Code § 3557(b)(1)(B)(2).

[10] Id.

[11] Id.

[12] Cal. Gov’t Code § 3557(b)(1)(B)(2).

[13] Id.

[14] Cal. Gov’t Code § 3557(b)(3).

[15] Cal. Gov’t Code § 3557(c).

[16] Id.

[17] Cal. Gov’t Code § 3557(d).

[18] Cal. Gov’t Code § 3555.5(c)(1).

Union Access to New Employee Orientation (AB 119) (K-12)

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