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Penalties for Failure to Provide Unions with Employees’ Contact Information

SB 270 – Government Code Section 3558 (part of the Public Employee Communications Chapter) (“Section 3558”)

By Kevin J. Chicas, Associate, Liebert Cassidy Whitmore

Since June 27, 2017, Government Code section 3558 has required public employers to provide recognized employee organizations with the names and home addresses of newly-hired employees within 30 days of hire or by the first pay period of the month following hire. Public employers have also been required since then to provide recognized employee organizations with employees’ job titles, departments, work locations, telephone numbers, and personal email addresses on file with the employer within that same statutory time frame.  In addition, public employers must provide this information for all employees in a bargaining unit at least every 120 days, with limited exceptions. Under current law, a recognized employee organization alleging a violation of this section can file an unfair practice charge (UPC) with the Public Employment Relations Board (“PERB”), subject to PERB’s normal procedures. In this sense, alleged violations of Government Code section 3558 are treated no different than any other alleged unfair labor practice.

SB 270 (Durazo) changes that: effective July 1, 2022, SB 270 amends Section 3558 and authorizes recognized employee organizations to file a special form of a UPC for an employer’s alleged failure to provide information pursuant to this statute, if the following requirements are met:

1. The recognized employee organization must have given written notice to the employer of an alleged violation of Section 3558, including the facts and theories to support the alleged violation.
2. If the alleged violation is that the employer provided an inaccurate or incomplete list, the employer must have the opportunity to cure the violation within 20 calendar days by providing an accurate and complete list.

Notably, the opportunity to cure does not apply to any other potential violations of Section 3558, including, but not limited to, the failure to submit a list of newly hired employees or failure to provide a list of bargaining unit members within the statutory time periods.

An employer attempting to cure a violation must give written notice, either electronically or by certified mail, to the recognized employee organization of the curative action taken within the 20-calendar day period. SB 270 also limits a public employer’s opportunity to cure violations to a maximum of three times in any 12-month period. Where a recognized employee organization prevails on an unfair practice charge under these provisions, SB 270 subjects the public employer to a civil penalty payable to the state’s General Fund, not to exceed $10,000. The exact amount of the penalty is left to PERB’s discretion, based on: (1) the public employer’s annual budget; (2) the severity of the violation; and (3) any prior history of violations by the public employer.

SB 270 also requires PERB to award a prevailing party (including to a public employer) with attorneys’ fees and costs from the inception of proceedings through to PERB’s final decision, except in the case of proceedings challenging the dismissal of a charge by PERB’s General Counsel. SB 270 also allows PERB to recover attorneys’ fees in court proceedings to enforce a board order, or when defending a decision of the board after a party seeks judicial review, if PERB is the prevailing party.

To avoid potential violations of Section 3558 and the amendments under SB 270, public employers should make sure to monitor and calendar the specific timelines to provide recognized employee organizations with the required employee contact information. Also, if a public agency receives a notice from a recognized employee organization detailing the alleged violation of Section 3558, it should make sure to respond and cure any potential violations within the 20-calendar day timeline.  Lastly, public employers can consider negotiating with recognized employee organizations to mutually agree on different intervals to provide employee contact information, since Section 3558 explicitly provides for this option.

 

This article was written by Kevin J. Chicas, Associate with Liebert Cassidy Whitmore, as part of CSDA’s New Laws Series, where experts explain legislation passed in 2021 and how it will impact special districts moving forward. This article is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues, and attorneys should perform an independent evaluation of the issues raised in these materials.

This concludes our 2022 New Laws Series articles. Stay tuned for the 2022 New Laws Publication for more in-depth analyses on new laws and legislation affecting special districts.

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