The State Worker

Chronicling civil-service life for California state workers

February 28, 2013
California bill would extend confidentiality privilege to unions

Should a union representative have the same privilege as a priest?

A new Assembly bill would give some union officials the same shield afforded doctors, lawyers and clergy by protecting their communications with union members from disclosure to the authorities, even when they learn of a crime.

Unions sponsored the measure introduced by Assemblyman Roger Hernandez. The West Covina Democrat said the bill gives "needed protections from employers" by walling off discussions between a union agent and a union member about bargaining or employee discipline.

"Most employees ... assume that such communications are confidential," Hernandez said in an emailed statement sent by his staff to The Bee.

Long-standing law allows physicians, lawyers, psychiatrists, clergy and some professional counselors to keep private the information they learn from clients or patients.

The statute assumes that society is better off when patients or clients can talk to privileged professionals without fear they'll suffer for being truthful. Still, the law has limits. A plan to commit murder isn't privileged communication between a client and an attorney, for example.

Assembly Bill 729 adds a "union agent-represented worker privilege" and defines "union agent" as elected union officials and union employees who handle grievance representation or contract negotiations.

The federal government recognizes a limited privilege to confidential union communications and states including Maryland and Illinois have similar laws on the books.

But two former state personnel department chiefs think the Hernandez measure is too broad. One questioned whether it's necessary, given that unions employ lawyers to protect their members' interests.

Ron Yank, a retired labor lawyer who headed the state personnel department in 2010 and 2011 said the measure needs to be refined because leaves the door open to "just any old job steward" taking the privilege, even in criminal matters.

"In criminal cases, I would want the union to designate a limited number of people pretty high up" in the union hierarchy, he said.

Yank's predecessor at the state Department of Personnel Administration, Dave Gilb, questioned whether the state should extend the communication shield to union representatives.

"There are so many union attorneys around to handle sensitive conversations," Gilb said, "does the state need one more level of privilege added to the law?"

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About The State Worker

Jon Ortiz The Author

Jon Ortiz launched The State Worker blog and a companion column in 2008 to cover state government from the perspective of California government employees. Every day he filters the news through a single question: "What does this mean for state workers?" Join Ortiz for updates and debate on state pay, benefits, pensions, contracts and jobs. Contact him at (916) 321-1043 and at jortiz@sacbee.com.

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