GOVERNOR'S VETO

GV Bill Id:AB 2114

Author:(Rodriguez)

As Enrolled Ver:September 1, 2020

2/3 vote

SUMMARY:

Requires a higher education employer to provide a procedure for certain employees regarding a termination of employment or disciplinary action, among other provisions.

The Senate Amendments:

1. Further clarify the higher education employees to whom the bill applies.
2. Require that, prior to exercising a challenge regarding a termination or disciplinary action, a higher education employer must first exhaust any administrative or academic grievance processes that are available to that employee.
3. Permit grievance of an administrative or disciplinary action taken by the higher education employer that is based on neither clinical nor academic matters and that is subject to appeal under the employer's procedures, and permit the exclusive representative to file a grievance following the result of the higher education employer's formal review.
4. Establish a process whereby a challenge must be heard by a panel consisting of a designee of the exclusive representative, a designated representative of the graduate medical education program, and an impartial hearing officer or arbitrator; however, if the employee is represented by an exclusive representative, the impartial hearing officer or arbitrator must be jointly selected by the higher education employer and the exclusive representative.
5. Provide that the panel must have the power to review the employer's action and provide a full remedy for termination or discipline without just cause.
6. Make a clarifying change relative to the definition of "academic or clinical matters", and define "disciplinary action" to mean the restriction, suspension, nonrenewal, or termination of employment.

Governor's Veto Message:

This bill would require certain higher education employers to provide an arbitration or hearing officer process to challenge a termination of employment or a disciplinary action for medical and dental interns and residents. The bill excludes disciplinary actions and terminations based on academic or clinical matters, making arbitration available only for matters within the scope of representation.

These residents and interns represent our State's pipeline of medical professionals, and they have been on the frontlines of the COVID-19 pandemic. They deserve an opportunity to challenge a disciplinary action or termination of employment that may be wrongful and that could potentially jeopardize their professional career. However, I believe that the definition of "academic" and "clinical" in this bill is too narrow and does not fully consider the various criteria used in determining a resident's readiness to safely practice.

I encourage the affected parties to agree upon a definition that both protects employees' due process rights and patient safety.

COMMENTS:

The Higher Education Employer-Employee Relations Act (HEERA) is a labor relations framework that applies to the University of California (UC), California State University, and Hastings College of Law. Its purpose is to limit labor strife through a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment between a public higher education employer and recognized public employee organization or their exclusive representative.

The HEERA explicitly requires that higher education employers (or their designated representatives) meet and confer with the employee organization that is the exclusive representative of an appropriate unit on all matters within the scope of representation. Generally, the scope of representation are those matters involving wages, hours, and other terms and conditions of employment. Similarly, the employee organization is obligated to meet and confer with the employer; thus, both parties have a duty to bargain. A failure to adhere to the rights, obligations and prohibitions by either a higher education employer or employee organization pursuant to the HEERA permits either party to file a grievance in the form of an unfair labor practice with the PERB.

This bill may be viewed as maintaining the state's fundamental interests in the development and continuity of harmonious and cooperative labor relations between the public institutions of higher education and their employees.

According to the Author:

"There has been a significant shortage of licensed medical professionals and practitioners in our healthcare system, which is now more acute because of COVID-19. Assembly Bill 2114 simply provides minimum employment rights to certain employees who work for a higher education employer regarding the practice of medicine and dentistry.

"These individuals who work in higher education to get the academic and education skills necessary for licensure to practice medicine or dentistry are not afforded basic rights - including due process - regarding termination of employment or discipline. A minor infraction could negatively impact their future employment opportunities when it's unrelated to licensed clinical practice or academics, or based on subjective criteria and decisions.

"Because of the ongoing crisis in healthcare, we need to make sure that such decisions don't harm the future employment opportunities of these professionals that we desperately need today. These professionals spend many years learning the practice of medicine and dentistry, and such actions or decision can mean whether their entire career is over, or whether they can be licensed to practice.

"The timing of this bill makes sense because I believe it's aligned with the Governor's effort earlier this year to fast-track the healthcare worker pipeline during this pandemic."

Arguments in Support:

According to the California State Council of the Service Employees International Union, "California's medical residents employed by the University of California (UC) system do not enjoy the same due process rights as other public employees, including others employed by UC. This discrimination has left medical residents particularly exposed to unfair disciplines and terminations without the impartial consideration such a decision warrants. These resident physicians are particularly vulnerable – competition is steep and without completion of a residency these physicians will not become licensed. The stakes are high and stress is extreme. This undue stress has been exacerbated by the COVID-19 pandemic as our approximate 5,500 medical residents do their share in this crisis. Recently, medical residents have received veiled threats of discipline for raising lack of PPE concerns on their personal social media accounts. Fear of reprisal has chilled their basic free speech rights. Even in the absence of COVID-19, the duress medical residents face is untenable with 24 hour shifts and more than 80-hour workweeks in an environment renowned for hazing young physicians. With the high financial and personal sacrifices their job requires, no UC employee has more to lose than resident physicians."

Arguments in Opposition:

The UC states that, "[i]f a graduate medical education (GME) program director's decisions are overturned by an arbitrator (who may not possess the qualifications for making such assessments), physicians and dentists who are not ready for licensure, board certification or safe independent practice may be allowed to continue without corrective action, creating risks for patients and healthcare workers. As written, the bill may also threaten the accreditation of UC's GME training programs. Despite our concerns, the UC believes there is a path for arbitration and additional due process in some circumstances, beyond what GME trainees already are afforded."

The UC further states that, "…the Accreditation Council for Graduate Medical Education (ACGME), which is responsible for accrediting and overseeing medical training programs, requires GME program directors be responsible for determining whether a trainee is qualified for advancement or graduation from the program as an independent physician. We are concerned that this bill, as written, impinges on this directive."

FISCAL COMMENTS:

According to the Senate Appropriations Committee, "[t]he UC indicates that it would incur annual General Fund ongoing costs ranging from $1.8 million to $4.5 million. Additionally, the bill would result in a one-time cost in the hundreds of thousands of dollars to UC for changes to policies and procedures (General Fund). To the extent the amendments reduce the number of cases going to arbitration, UC's costs would be lower."

VOTES:

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 5-1-1

YES: Rodriguez, Cooley, Cooper, O'Donnell, Reyes

NO: Fong

ABS, ABST OR NV: Voepel

ASM APPROPRIATIONS: 13-5-0

YES: Gonzalez, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas

NO: Bigelow, Megan Dahle, Diep, Fong, Voepel

ASSEMBLY FLOOR: 58-17-4

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Daly, Eggman, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Weber, Wicks, Wood, Rendon

NO: Bigelow, Chen, Choi, Cunningham, Megan Dahle, Diep, Fong, Gallagher, Kiley, Lackey, Levine, Mathis, Mayes, Obernolte, Patterson, Voepel, Waldron

ABS, ABST OR NV: Flora, Frazier, Irwin, Quirk

SENATE FLOOR: 22-12-6

YES: Archuleta, Atkins, Beall, Bradford, Caballero, Durazo, Galgiani, Lena Gonzalez, Hill, Hueso, Hurtado, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Skinner, Umberg, Wieckowski, Wiener

NO: Bates, Borgeas, Chang, Dahle, Dodd, Glazer, Grove, Melendez, Moorlach, Morrell, Nielsen, Wilk

ABS, ABST OR NV: Allen, Hertzberg, Jackson, Jones, Rubio, Stern

ASSEMBLY FLOOR: 55-15-9

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Holden, Jones-Sawyer, Kalra, Kamlager, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Weber, Wood, Rendon

NO: Bigelow, Brough, Chen, Choi, Cunningham, Megan Dahle, Diep, Fong, Gallagher, Kiley, Lackey, Mathis, Obernolte, Patterson, Waldron

ABS, ABST OR NV: Daly, Eggman, Flora, Frazier, Grayson, Irwin, Mayes, Voepel, Wicks

UPDATED:

VERSION: September 1, 2020

CONSULTANT: Michael Bolden / P. E. & R. / (916) 319-3957 FN: 0003708

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2114

Author:(Rodriguez)

As Amended Ver:August 20, 2020

Majority vote

SUMMARY:

Requires a higher education employer to provide a procedure for certain employees regarding a termination of employment or disciplinary action, among other provisions.

The Senate Amendments:

1. Further clarify the higher education employees to whom the bill applies.
2. Require that, prior to exercising a challenge regarding a termination or disciplinary action, a higher education employer must first exhaust any administrative or academic grievance processes that are available to that employee.
3. Permit grievance of an administrative or disciplinary action taken by the higher education employer that is based on neither clinical nor academic matters and that is subject to appeal under the employer's procedures, and permit the exclusive representative to file a grievance following the result of the higher education employer's formal review.
4. Establish a process whereby a challenge must be heard by a panel consisting of a designee of the exclusive representative, a designated representative of the graduate medical education program, and an impartial hearing officer or arbitrator; however, if the employee is represented by an exclusive representative, the impartial hearing officer or arbitrator must be jointly selected by the higher education employer and the exclusive representative.
5. Provide that the panel must have the power to review the employer's action and provide a full remedy for termination or discipline without just cause.
6. Make a clarifying change relative to the definition of "academic or clinical matters", and define "disciplinary action" to mean the restriction, suspension, nonrenewal, or termination of employment.

COMMENTS:

The Higher Education Employer-Employee Relations Act (HEERA) is a labor relations framework that applies to the University of California (UC), California State University, and Hastings College of Law. Its purpose is to limit labor strife through a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment between a public higher education employer and recognized public employee organization or their exclusive representative.

The HEERA explicitly requires that higher education employers (or their designated representatives) meet and confer with the employee organization that is the exclusive representative of an appropriate unit on all matters within the scope of representation. Generally, the scope of representation are those matters involving wages, hours, and other terms and conditions of employment. Similarly, the employee organization is obligated to meet and confer with the employer; thus, both parties have a duty to bargain. A failure to adhere to the rights, obligations and prohibitions by either a higher education employer or employee organization pursuant to the HEERA permits either party to file a grievance in the form of an unfair labor practice with the PERB.

This bill may be viewed as maintaining the state's fundamental interests in the development and continuity of harmonious and cooperative labor relations between the public institutions of higher education and their employees.

According to the Author:

"There has been a significant shortage of licensed medical professionals and practitioners in our healthcare system, which is now more acute because of COVID-19. Assembly Bill 2114 simply provides minimum employment rights to certain employees who work for a higher education employer regarding the practice of medicine and dentistry.

"These individuals who work in higher education to get the academic and education skills necessary for licensure to practice medicine or dentistry are not afforded basic rights - including due process - regarding termination of employment or discipline. A minor infraction could negatively impact their future employment opportunities when it's unrelated to licensed clinical practice or academics, or based on subjective criteria and decisions.

"Because of the ongoing crisis in healthcare, we need to make sure that such decisions don't harm the future employment opportunities of these professionals that we desperately need today. These professionals spend many years learning the practice of medicine and dentistry, and such actions or decision can mean whether their entire career is over, or whether they can be licensed to practice.

"The timing of this bill makes sense because I believe it's aligned with the Governor's effort earlier this year to fast-track the healthcare worker pipeline during this pandemic."

Arguments in Support:

According to the California State Council of the Service Employees International Union, "California's medical residents employed by the University of California (UC) system do not enjoy the same due process rights as other public employees, including others employed by UC. This discrimination has left medical residents particularly exposed to unfair disciplines and terminations without the impartial consideration such a decision warrants. These resident physicians are particularly vulnerable – competition is steep and without completion of a residency these physicians will not become licensed. The stakes are high and stress is extreme. This undue stress has been exacerbated by the COVID-19 pandemic as our approximate 5,500 medical residents do their share in this crisis. Recently, medical residents have received veiled threats of discipline for raising lack of PPE concerns on their personal social media accounts. Fear of reprisal has chilled their basic free speech rights. Even in the absence of COVID-19, the duress medical residents face is untenable with 24 hour shifts and more than 80-hour workweeks in an environment renowned for hazing young physicians. With the high financial and personal sacrifices their job requires, no UC employee has more to lose than resident physicians."

Arguments in Opposition:

The UC states that, "[i]f a graduate medical education (GME) program director's decisions are overturned by an arbitrator (who may not possess the qualifications for making such assessments), physicians and dentists who are not ready for licensure, board certification or safe independent practice may be allowed to continue without corrective action, creating risks for patients and healthcare workers. As written, the bill may also threaten the accreditation of UC's GME training programs. Despite our concerns, the UC believes there is a path for arbitration and additional due process in some circumstances, beyond what GME trainees already are afforded."

The UC further states that, "…the Accreditation Council for Graduate Medical Education (ACGME), which is responsible for accrediting and overseeing medical training programs, requires GME program directors be responsible for determining whether a trainee is qualified for advancement or graduation from the program as an independent physician. We are concerned that this bill, as written, impinges on this directive."

FISCAL COMMENTS:

According to the Senate Appropriations Committee, "[t]he UC indicates that it would incur annual General Fund ongoing costs ranging from $1.8 million to $4.5 million. Additionally, the bill would result in a one-time cost in the hundreds of thousands of dollars to UC for changes to policies and procedures (General Fund). To the extent the amendments reduce the number of cases going to arbitration, UC's costs would be lower."

VOTES:

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 5-1-1

YES: Rodriguez, Cooley, Cooper, O'Donnell, Reyes

NO: Fong

ABS, ABST OR NV: Voepel

ASM APPROPRIATIONS: 13-5-0

YES: Gonzalez, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas

NO: Bigelow, Megan Dahle, Diep, Fong, Voepel

ASSEMBLY FLOOR: 58-17-4

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Daly, Eggman, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Weber, Wicks, Wood, Rendon

NO: Bigelow, Chen, Choi, Cunningham, Megan Dahle, Diep, Fong, Gallagher, Kiley, Lackey, Levine, Mathis, Mayes, Obernolte, Patterson, Voepel, Waldron

ABS, ABST OR NV: Flora, Frazier, Irwin, Quirk

SENATE FLOOR: 22-12-6

YES: Archuleta, Atkins, Beall, Bradford, Caballero, Durazo, Galgiani, Lena Gonzalez, Hill, Hueso, Hurtado, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Skinner, Umberg, Wieckowski, Wiener

NO: Bates, Borgeas, Chang, Dahle, Dodd, Glazer, Grove, Melendez, Moorlach, Morrell, Nielsen, Wilk

ABS, ABST OR NV: Allen, Hertzberg, Jackson, Jones, Rubio, Stern

UPDATED:

VERSION: August 20, 2020

CONSULTANT: Michael Bolden / P.E. & R. / (916) 319-3957 FN: 0003477

 THIRD READING  

Bill No: AB 2114

Author: Rodriguez (D)

Amended: 8/20/20 in Senate

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 3-1, 8/11/20

AYES: Hill, Mitchell, Pan

NOES: Morrell

NO VOTE RECORDED: Jackson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/20/20

AYES: Portantino, Bradford, Hill, Leyva, Wieckowski

NOES: Bates, Jones

ASSEMBLY FLOOR: 58-17, 6/10/20 - See last page for vote

SUBJECT: Higher Education Employer-Employee Relations Act: procedures relating to employee termination or discipline

SOURCE: Service Employees International Union

DIGEST:

This bill requires Higher Education Employers to provide a procedure to challenge a termination of employment or a disciplinary action for medical and dental interns and residents and other related employees, as specified.

ANALYSIS:

Existing law:

1. Defines “Higher Education Employer” to mean any of the following:
   1. A member of the Board of Regents of the University of California.
   2. A member of the Board of Directors of Hastings College of the Law.
   3. An affiliate of the University of California.
   4. A member of the Board of Trustees governing the California State University system.

(Government Code §3560)

1. Grants Higher Education Employees the right to form, join and participate in the activities of employee organizations for the purpose of representation in employer-employee relations and for meeting and conferring. (Government Code §3565)
2. Allows any employee or group of employees to present grievances to their employer and have such grievances adjusted. The employer must not agree to a resolution of the grievance until provided with a copy of the grievance and proposed solution. (Government Code §3567)
3. Prohibits higher education employers from engaging in any of the following practices:
   1. Refusing or failing to engage in a meeting and conferring with a chosen exclusive representative.
   2. Interfering with the formation or administration of any employee organization or in any way encouraging employees to join any organization in preference to another.
   3. Refusing to participate in good faith during an impasse procedure.
   4. Consulting with any academic, professional, or staff advisory group on any matter within the scope of representation for employees who are represented by an exclusive representative until such time as an election has been held in which “no representative” received a majority of the votes cast.
   5. Denying an employee organization any rights guaranteed above.
   6. Imposing or threatening reprisals on employees for exercising any of the above rights or privileges. Employee includes an applicant for employment or reemployment.

(Government Code §3571)

1. Prohibits an employee organization from engaging in the following practices:
   1. Causing or attempting to cause a higher education employer to violate the above section, 3571.
   2. Imposing or threatening to impose reprisals on employees or otherwise discriminating against employees for exercising their rights under any of the above sections.
   3. Refusing or failing to engage in meeting and conferring with the higher education employer.
   4. Refusing to participate in good faith in an impasse procedure.
   5. Failing to represent all the employees in the unit fairly and impartially.
   6. Requiring the payment of a fee as a condition to becoming a member of an employee organization in an amount which the Public Employee Relations Board finds excessive or discriminatory under all the circumstances.
   7. Causing or attempting to cause an employer to pay or deliver any money or other thing of value for services which are not performed or are not to be performed.

(Government Code §3571.1)

1. States that the expression of any views, arguments, or opinions, or the dissemination thereof, whether in written, printed, graphic, or visual form, does not constitute an unfair labor practice unless such expression contains a threat of reprisal, force, or promise of benefit, or expressly advocate for one employee organization over others. (Government Code §3571.3)

This bill:

1. Requires all higher education employers to provide a procedure to challenge a termination of employment or a disciplinary action by the employer for the following occupations:
   1. Medical and dental interns and residents.
   2. Persons in resident physician subspecialty programs accredited by the Accreditation Council for Graduate Medical Education.
   3. Other post-medical doctor degree trainees in programs not accredited by the Accreditation Council for Graduate Medical Education.
2. Requires a higher education employee first exhaust any administrative or academic grievance processes that are available to that employee before proceeding with a challenge.
3. Requires the administrative or disciplinary action taken by the higher education employer be based on neither clinical nor academic matters and already be subject to appeal under that employer’s procedures in order to have a challenge issued.
4. Requires a challenge be heard by a panel consisting of a designee of the exclusive representative, a designated representative of the graduate medical education program, and an impartial hearing officer or arbitrator. This panel will have the power to review the employer’s action and provide a full remedy for termination or discipline without just cause. If the employee is represented by an exclusive representative, the impartial hearing officer or arbitrator must be jointly selected by the higher education employer and exclusive representative.
5. States that a memorandum of understanding between a higher education employer and an exclusive representative that provides a procedure for the employee or employee’s representative to challenge a termination of employment or a disciplinary action takes precedence over this bill.
6. Defines “Academic or Clinical Matters” to mean matters that relate to an employee’s acquisition of core competencies and the development of the clinical skills necessary to function at the level of the employee’s credential for licensure, practice, or board certification in the academic discipline or medical specialty.
7. Defines “Disciplinary Action” to mean restriction, suspension, nonrenewal, or termination of employment.

Comments

1. Need for this bill? The Service Employees International Union (SEIU), the sponsor of this bill, reports:

A recent survey [of medical residents] found the following:

• 40 percent felt bullied by an attending physician.
• They are 2 times more likely to commit suicide.
• Female doctors are 4 times more likely to commit suicide than women in other professions.
• 28 percent have fallen asleep at the wheel post-call.
• 10 percent of first year and fourth year medical students report having suicidal thoughts.
• 62 percent felt so burned out that it affected their work.

SEIU goes on to state, “Assembly Bill 2114 is neither radical nor a departure from current law it simply provides an impartial review of disciplinary and termination matters that are unrelated to academic or clinical matters. There is no reason to continue to deny medical residents the equal treatment that is afforded to other public employees.”

1. Senate Labor, Public Employment and Retirement Committee Staff Comments
   1. Brief History of the Higher Education Employer-Employee Relation Act (HEERA)

Collective bargaining between state employers and state employees was first established in 1977 under the Ralph C. Dills act, also known as the State Employer-Employee Relations Act (SEERA). This act granted state employees the right to belong to organizations that serve as their exclusive representatives in contractual negotiations over wages, hours, and other terms and conditions of employment. The act also required the state and employee representatives to "meet and confer in good faith" and to endeavor to reach agreement on these matters.

The next year in 1978, the Legislature enacted the Higher Education Employer-Employee Relations Act (HEERA), which specifically governs collective bargaining in higher education. Unlike Memoranda of Understanding (MOUs) negotiated under the Ralph C. Dills Act, the MOUs negotiated between higher education employers and their employees are not subject to either review or approval by the Legislature.

• 1. Litigation and Rulings

Almost immediately following the passage of HEERA, the University of California (UC) alerted medical residents on its Davis, Irvine and San Francisco campuses that it no longer considered them to be employees and would stop making payroll deductions for union dues. The union that had represented these workers, the Physicians National Housestaff Association (PNHA), filed an unfair labor practice charge against the UC. In the resulting case, Regents of University of California v. Public Employee Relations Board, the California Supreme Court eventually ruled in favor of PNHA, ruling that the residents were employees and were entitled to collective bargaining rights under HEERA.

Outside of California, another consequential ruling for the future of higher education was being decided. In the case of Kraft v. W. Alanson White Psychiatric Foundation, a doctor attended a post-graduate continuing education program, was subsequently found unsatisfactory and the post-graduate program refused to issue him a certificate of completion. Dr. Kraft sued for breach of contract, claiming that attendance and participation meant he was owed the certificate. The District of Columbia Court of Appeals found in favor of W. Alanson White Psychiatric, noting:

“Whether [Dr. Kraft’s] clinical supervisors were accurate in their evaluations of his clinical work is not a question for the court. An academic judgment of school officials that a student does not have the necessary clinical ability to perform adequately and was making insufficient progress toward that goal is a determination calling for judicial deference.” (Kraft v. W. Alanson White Psychiatric Found., 498 A. 2d 1145 - DC: Court of Appeals 1985)

The judge here makes reference to the concept of judicial deference and cites the case of Board of Curators of the University of Michigan v. Horowitz. In this case, the court reasoned that:

“[S]uch a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.”

In both cases, the judges decided against intruding into academic decision making.

While it is now accepted that HEERA gives employee representative organizations the right to bargain on behalf of their members on matters “within the scope of representation”, this term went through several legal challenges, including one in 2008 with bearing on the bill at hand. The case, California Faculty Association v. Public Employee Relations Board, involved a decision by California State University (CSU) regents to exclude members of the California Faculty Association (CFA) union from the newly constructed parking structure. CSU asserted that the decision did not constitute an unfair labor practice, because location of parking was not covered under the scope of representation. However, the California Supreme Court found in favor of CFA, stating that scope of representation covers matters that “involve the employment relationship” and “are of such concern to both management and labor that conflict is likely to occur and the mediatory influence of collective negotiations is an appropriate means of resolving the conflict.”

In short, the legal history of rulings on this issue is a somewhat mixed bag. On one hand, courts have well established that higher education employees have collective bargaining rights and that matters within the scope of bargaining extended to matters outside of strictly wages and hours. On the other hand, courts consistently held that there were academic matters on which judgment should be left to educational institutions.

• 1. AB 2114: A Possible Way Forward

As noted in the Assembly Public Employment and Retirement Committee’s analysis:

“The termination of employment and disciplinary matters, both inherently involving the terms and conditions of employment, are very likely within the scope of representation because 1) they each involve the employment relationship, 2) are a concern to both management and employees, and 3) negotiating these matters would not abridge the freedoms of management to exercise its prerogatives, and thus, would involve some due process rights relating to Assembly Bill 2114.”

This conclusion seems sound, based on existing case law and on examples of how other bargaining units are treated under HEERA. Assembly Bill 2114 would align the treatment of medical residents more squarely with other employees covered under HEERA. It accomplishes this by requiring a procedure for certain employees to challenge a termination of employment or disciplinary action by the employer and establishes the precedence of an MOU over a conflicting statutory provision. This new procedure would establish that the specified employees would have at least some recourse, especially given how these decisions on non-clinical matters can have extremely adverse impacts on these employees’ future employment opportunities.

With this conclusion in mind, it is still important to note where this measure falls short. AB 2114 defines “academic or clinical matters” to mean “those matters that relate to an employee’s acquisition of core competencies and the development of the clinical skills necessary to function at the level of the employee’s credential in a licensed academic discipline or medical specialty.” Employers should not be able to dismiss their employees for arbitrary or overly subjective reasons; however that still leaves a good deal of overlap between matters “in the scope of representation” and matters that are “academic or clinical”. For example, if a resident is dismissed for excessive tardiness, is that considered an academic or clinical matter? Medical residents have massive responsibility to their patients and academic institutions must ensure high standards of training for those employees. If a system is erected that makes it too easy to circumvent safeguards on these high standards, then the standards will inevitably fall.

Finally, while AB 2114 calls for a procedure to be established to challenge non-academic or clinical dismissals, it does not delineate much about the actual mechanics of the procedure. Without a clear procedure outlined in the bill, these decisions will be given over to the higher education employers, as defined. As UC has reportedly been reticent to engage on this issue, it is easy to foresee a scenario where future pieces of clarifying legislation come before this committee. The author could put this matter to rest and consider amendments to more clearly establish the procedure to challenge dismissals or disciplinary actions required by AB 2114.

Related/Prior Legislation

SB 201 (Skinner, Chapter 854, Statutes of 2017) amended HEERA to provide collective bargaining rights to student employees at the University of California (UC), California State University (CSU), and Hastings College of Law, whose employment is contingent on their status as students.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, the University of California (UC) indicates that it would incur annual General Fund ongoing costs ranging from $1.8 million to $4.5 million. Additionally, the bill would result in a one-time cost in the hundreds of thousands of dollars to UC for changes to policies and procedures (General Fund). To the extent the amendments reduce the number of cases going to arbitration, UC’s costs would be lower.

SUPPORT: (Verified 8/20/20)

Service Employees International Union (source)

American Federation of State, County and Municipal Employees, AFL-CIO

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California Federation of Teachers

California Labor Federation, AFL-CIO

California School Employees Association

California Teamsters Public Affairs Council

Inlandboatmen's Union of the Pacific

Professional and Technical Engineers, IFPTE Local 21, AFL-CIO

Unite Here International Union, AFL-CIO

Utility Workers Union of America

OPPOSITION: (Verified 8/20/20)

University of California

ARGUMENTS IN SUPPORT: California School Employees Association, AFL-CIO writes:

The California School Employees Association, AFL-CIO, supports Assembly Bill 2114 (Rodriguez), which would require a higher education institution to provide a procedure for all medical and dental interns and residents, persons in resident physician subspecialty programs, and other post-medical doctor degree trainees to challenge a termination of employment or a disciplinary action by the employer. The challenge would be heard by an independent hearing officer.

Specifically, medical residents and interns employed by our University of California system lack the basic due process rights that are afforded to other public employees. This inequity has left medical residents and interns at risk of unfair discipline and termination without the impartial consideration that an independent hearing officer may afford.

ARGUMENTS IN OPPOSITION: The University of California writes in opposition:

The University estimates annual costs of $5-7 million per year and one-time costs of $430,000 to develop and implement new personnel policies at our 10 UC campuses. The annual costs are based on: 1) approximately $80,000-$100,000 per case through hearing, including contract costs for an arbitrator and counsel; 2) approximately 20-25 grievance filings per year; 3) the substantive changes contained in the bill requiring subsequent revisions to collective bargaining agreements and other systemwide policies applicable to non-represented staff and academic employees; and 4) ongoing support for new staff to revise academic personnel policies on campuses. Additionally, the University anticipates (but is not yet able to quantify) both one-time and ongoing costs that would be incurred by UC Health’s academic medical centers to make the similar necessary changes to their personnel policies and procedures.

Beyond fiscal concerns, the University has serious policy concerns with AB 2114. The bill would take academic decision making out of the hands of physicians who are responsible for teaching resident physicians, and who are responsible for assessing the competencies of every resident physician for safe and independent practice, and place it into the hands of a third party arbitrator who would not possess the qualifications for making such assessments.

ASSEMBLY FLOOR: 58-17, 6/10/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Daly, Eggman, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Weber, Wicks, Wood, Rendon

NOES: Bigelow, Chen, Choi, Cunningham, Megan Dahle, Diep, Fong, Gallagher, Kiley, Lackey, Levine, Mathis, Mayes, Obernolte, Patterson, Voepel, Waldron

NO VOTE RECORDED: Flora, Frazier, Irwin, Quirk

Prepared by: Jake Ferrera / L., P.E. & R. / (916) 651-1556

8/24/20 15:35:35

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 2114 (Rodriguez) - Higher Education Employer-Employee Relations Act: procedures relating to employee termination or discipline

Bill Summary:

AB 2114 would require higher education employers to provide a procedure to challenge a termination of employment or a disciplinary action for medical and dental interns and residents and other related employees, as specified.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 20, 2020

Fiscal Impact:

The University of California (UC) indicates that it would incur annual General Fund ongoing costs ranging from $1.8 million to $4.5 million. Additionally, the bill would result in a one-time cost in the hundreds of thousands of dollars to UC for changes to policies and procedures (General Fund). To the extent the amendments reduce the number of cases going to arbitration, UC’s costs would be lower.

Author Amendments:

Specify that an employee must first exhaust any available administrative or academic grievance process before the bill’s provision take effect.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 2114 (Rodriguez) - Higher Education Employer-Employee Relations Act: procedures relating to employee termination or discipline

Bill Summary:

AB 2114 would require higher education employers to provide a procedure to challenge a termination of employment or a disciplinary action for medical and dental interns and residents and other related employees, as specified.

Fiscal Impact:

The University of California (UC) indicates that it would incur annual General Fund ongoing costs ranging from $1.8 million to $4.5 million. Additionally, the bill would result in a one-time cost in the hundreds of thousands of dollars to UC for changes to policies and procedures (General Fund).

Background:

The Higher Education Employer-Employee Relations Act (HEERA) provides a statutory framework to regulate labor relations between UC, CSU, and Hastings College of Law and their employees. HEERA is administered and enforced by the Public Employment Relations Board (PERB).

The Senate Labor, Public Employment and Retirement Committee analysis of the bill states that “Almost immediately following the passage of HEERA, the University of California (UC) alerted medical residents on its Davis, Irvine and San Francisco campuses that it no longer considered them to be employees and would stop making payroll deductions for union dues. The union that had represented these workers, the Physicians National Housestaff Association (PNHA), filed an unfair labor practice charge against the UC. In the resulting case, Regents of University of California v. Public Employee Relations Board, the California Supreme Court eventually ruled in favor of PNHA, ruling that the residents were employees and were entitled to collective bargaining rights under HEERA.

While HEERA gives employee representative organizations the right to bargain on behalf of their members on matters “within the scope of representation”, this term went through several legal challenges, including one in 2008 with bearing on the bill at hand. The case, California Faculty Association v. Public Employee Relations Board, involved a decision by California State University (CSU) regents to exclude members of the California Faculty Association (CFA) union from the newly constructed parking structure. CSU asserted that the decision did not constitute an unfair labor practice, because location of parking was not covered under the scope of representation. However, the California Supreme Court found in favor of CFA, stating that scope of representation covers matters that “involve the employment relationship” and “are of such concern to both management and labor that conflict is likely to occur and the mediatory influence of collective negotiations is an appropriate means of resolving the conflict.”

Proposed Law:

The bill would, among other things, do the following:

• Require all higher education employers to provide a procedure to challenge a termination of employment or a disciplinary action by the employer for the following occupations: (1) medical and dental interns and residents, (2) persons in resident physician subspecialty programs accredited by the Accreditation Council for Graduate Medical Education, and (3) other post-medical doctor degree trainees in programs not accredited by the Accreditation Council for Graduate Medical Education.
• Require that an impartial hearing officer or arbitrator who will be granted the power to review the employer’s action and provide a full remedy for termination or discipline without just cause must hear a challenge of termination or disciplinary action by an employee. If an exclusive representative represents the employee, the higher education employer and exclusive representative must jointly select the impartial hearing officer or arbitrator.
• State that a memorandum of understanding between a higher education employer and an exclusive representative that provides a procedure for the employee or employee’s representative to challenge a termination of employment or a disciplinary action takes precedence over this bill.
• Exclude terminations of employment or disciplinary action based on those academic or clinical matters that are not covered under an exclusive representative’s scope of representation from the requirements of this bill.
• Define “academic or clinical matters” to mean those matters that relate to an employee’s acquisition of core competencies and the development of the clinical skills necessary to function at the level of the employee’s credential in a licensed academic discipline or medical specialty.

Related Legislation: SB 201 (Skinner Chapter 854, Statutes of 2017) amended HEERA to provide collective bargaining rights to student employees at the University of California (UC), California State University (CSU), and Hastings College of Law, whose employment is contingent on their status as students.

Staff Comments:

UC anticipates three to five arbitration cases annually under the bill at each of its affected locations, based on historical disciplinary and termination actions for medical and dental residents and interns. Thus, UC estimates 18 to 30 cases across its six medical schools. UC indicates that most of these cases are disciplinary actions, and there are only one or two terminations or non-renewals per year. UC estimates the total cost to implement the current version of the bill would be up to $4.5 million annually. Costs to develop and implement new system-wide personnel policies would be in the hundreds of thousands of dollars on a one-time basis.

-- END --

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Jerry Hill, Chair

2019 - 2020 Regular

Bill No: AB 2114 Hearing Date: August 11, 2020

SUBJECT: Higher Education Employer-Employee Relations Act: procedures relating to employee termination or discipline.

KEY ISSUE

Should the Legislature require Higher Education Employers to provide a procedure to challenge a termination of employment or a disciplinary action for medical and dental interns and residents and other related employees, as specified?

ANALYSIS

Existing law:

1. Defines “Higher Education Employer” to mean any of the following:
2. A member of the Board of Regents of the University of California.
3. A member of the Board of Directors of Hastings College of the Law.
4. An affiliate of the University of California.
5. A member of the Board of Trustees governing the California State University system.

(Government Code §3560)

1. Grants Higher Education Employees the right to form, join and participate in the activities of employee organizations for the purpose of representation in employer-employee relations and for meeting and conferring. (Government Code §3565)
2. Allows any employee or group of employees to present grievances to their employer and have such grievances adjusted. The employer must not agree to a resolution of the grievance until provided with a copy of the grievance and proposed solution.

(Government Code §3567)

1. Prohibits higher education employers from engaging in any of the following practices:
2. Refusing or failing to engage in a meeting and conferring with a chosen exclusive representative.
3. Interfering with the formation or administration of any employee organization or in any way encouraging employees to join any organization in preference to another.
4. Refusing to participate in good faith during an impasse procedure.
5. Consulting with any academic, professional, or staff advisory group on any matter within the scope of representation for employees who are represented by an exclusive representative until such time as an election has been held in which “no representative” received a majority of the votes cast.
6. Denying an employee organization any rights guaranteed above.
7. Imposing or threatening reprisals on employees for exercising any of the above rights or privileges. Employee includes an applicant for employment or reemployment.

(Government Code §3571)

1. Prohibits an employee organization from engaging in the following practices:
2. Causing or attempting to cause a higher education employer to violate the above section, 3571.
3. Imposing or threatening to impose reprisals on employees or otherwise discriminating against employees for exercising their rights under any of the above sections.
4. Refusing or failing to engage in meeting and conferring with the higher education employer.
5. Refusing to participate in good faith in an impasse procedure.
6. Failing to represent all the employees in the unit fairly and impartially.
7. Requiring the payment of a fee as a condition to becoming a member of an employee organization in an amount which the Public Employee Relations Board finds excessive or discriminatory under all the circumstances.
8. Causing or attempting to cause an employer to pay or deliver any money or other thing of value for services which are not performed or are not to be performed.

(Government Code §3571.1)

1. States that the expression of any views, arguments, or opinions, or the dissemination thereof, whether in written, printed, graphic, or visual form, does not constitute an unfair labor practice unless such expression contains a threat of reprisal, force, or promise of benefit, or expressly advocate for one employee organization over others. (Government Code §3571.3)

This bill:

1. Requires all higher education employers to provide a procedure to challenge a termination of employment or a disciplinary action by the employer for the following occupations:
2. Medical and dental interns and residents
3. Persons in resident physician subspecialty programs accredited by the Accreditation Council for Graduate Medical Education
4. Other post-medical doctor degree trainees in programs not accredited by the Accreditation Council for Graduate Medical Education
5. Requires that an impartial hearing officer or arbitrator who will be granted the power to review the employer’s action and provide a full remedy for termination or discipline without just cause must hear a challenge of termination or disciplinary action by an employee. If an exclusive representative represents the employee, the higher education employer and exclusive representative must jointly select the impartial hearing officer or arbitrator.
6. States that a memorandum of understanding between a higher education employer and an exclusive representative that provides a procedure for the employee or employee’s representative to challenge a termination of employment or a disciplinary action takes precedence over this bill.
7. Excludes terminations of employment or disciplinary action based on those academic or clinical matters that are not covered under an exclusive representative’s scope of representation from the requirements of this bill.
8. Defines “academic or clinical matters” to mean those matters that relate to an employee’s acquisition of core competencies and the development of the clinical skills necessary to function at the level of the employee’s credential in a licensed academic discipline or medical specialty.

COMMENTS

1. Need for this bill?

The Service Employees International Union, the sponsor of the bill, reports:

A recent survey [of medical residents] found the following:

• 40 percent felt bullied by an attending physician.
• They are 2 times more likely to commit suicide.
• Female doctors are 4 times more likely to commit suicide than women in other professions.
• 28 percent have fallen asleep at the wheel post-call.
• 10 percent of first year and fourth year medical students report having suicidal thoughts.
• 62 percent felt so burned out that it affected their work.”

SEUI goes on to state:

“Assembly Bill 2114 is neither radical nor a departure from current law it simply provides an impartial review of disciplinary and termination matters that are unrelated to academic or clinical matters. There is no reason to continue to deny medical residents the equal treatment that is afforded to other public employees.”

1. Staff Comments
2. Brief History of the Higher Education Employer-Employee Relation Act (HEERA)

Collective bargaining between state employers and state employees was first established in 1977 under the Ralph C. Dills act, also known as the State Employer-Employee Relations Act (SEERA). This act granted state employees the right to belong to organizations that serve as their exclusive representatives in contractual negotiations over wages, hours, and other terms and conditions of employment. The act also required the state and employee representatives to "meet and confer in good faith" and to endeavor to reach agreement on these matters.

The next year in 1978, the Legislature enacted the Higher Education Employer-Employee Relations Act (HEERA), which specifically governs collective bargaining in higher education. Unlike Memoranda of Understanding (MOUs) negotiated under the Ralph C. Dills Act, the MOUs negotiated between higher education employers and their employees are not subject to either review or approval by the Legislature.

1. Litigation on HEERA

Almost immediately following the passage of HEERA, the University of California (UC) alerted medical residents on its Davis, Irvine and San Francisco campuses that it no longer considered them to be employees and would stop making payroll deductions for union dues. The union that had represented these workers, the Physicians National Housestaff Association (PNHA), filed an unfair labor practice charge against the UC. In the resulting case, Regents of University of California v. Public Employee Relations Board, the California Supreme Court eventually ruled in favor of PNHA, ruling that the residents were employees and were entitled to collective bargaining rights under HEERA.

While HEERA gives employee representative organizations the right to bargain on behalf of their members on matters “within the scope of representation”, this term went through several legal challenges, including one in 2008 with bearing on the bill at hand. The case, California Faculty Association v. Public Employee Relations Board, involved a decision by California State University (CSU) regents to exclude members of the California Faculty Association (CFA) union from the newly constructed parking structure. CSU asserted that the decision did not constitute an unfair labor practice, because location of parking was not covered under the scope of representation. However, the California Supreme Court found in favor of CFA, stating that scope of representation covers matters that “involve the employment relationship” and “are of such concern to both management and labor that conflict is likely to occur and the mediatory influence of collective negotiations is an appropriate means of resolving the conflict.”

1. AB 2114: A Possible Way Forward

As noted in the Assembly Public Employment and Retirement Committee’s analysis:

“The termination of employment and disciplinary matters, both inherently involving the terms and conditions of employment, are very likely within the scope of representation because 1) they each involve the employment relationship, 2) are a concern to both management and employees, and 3) negotiating these matters would not abridge the freedoms of management to exercise its prerogatives, and thus, would involve some due process rights relating to Assembly Bill 2114.”

This conclusion seems sound, based on existing case law and on examples of how other bargaining units are treated under HEERA. Assembly Bill 2114 would align the treatment of medical residents more squarely with other employees covered under HEERA. It accomplishes this by requiring a procedure for certain employees to challenge a termination of employment or disciplinary action by the employer and establishes the precedence of an MOU over a conflicting statutory provision. This new procedure would establish that the specified employees would have at least some recourse, especially given how these decisions on non-clinical matters can have extremely adverse impacts on these employees’ future employment opportunities.

With this conclusion in mind, it is still important to note where this measure falls short. AB 2114 defines “academic or clinical matters” to mean “those matters that relate to an employee’s acquisition of core competencies and the development of the clinical skills necessary to function at the level of the employee’s credential in a licensed academic discipline or medical specialty.” Employers should not be able to dismiss their employees for arbitrary or overly subjective reasons; however that still leaves a good deal of overlap between matters “in the scope of representation” and matters that are “academic or clinical”. For example, if a resident is dismissed for excessive tardiness, is that considered an academic or clinical matter? Medical residents have massive responsibility to their patients and academic institutions must ensure high standards of training for those employees. If a system is erected that makes it too easy to circumvent safeguards on these high standards, then the standards will inevitably fall.

Finally, while AB 2114 calls for a procedure to be established to challenge non-academic or clinical dismissals, it does not delineate much about the actual mechanics of the procedure. Without a clear procedure outlined in the bill, these decisions will be given over to the higher education employers, as defined. As UC has reportedly been reticent to engage on this issue, it is easy to foresee a scenario where future pieces of clarifying legislation come before this committee. The author could put this matter to rest and consider amendments to more clearly establish the procedure to challenge dismissals or disciplinary actions required by AB 2114.

1. Proponent Arguments

“The California School Employees Association, AFL-CIO, supports Assembly Bill 2114 (Rodriguez), which would require a higher education institution to provide a procedure for all medical and dental interns and residents, persons in resident physician subspecialty programs, and other post-medical doctor degree trainees to challenge a termination of employment or a disciplinary action by the employer. The challenge would be heard by an independent hearing officer.

Specifically, medical residents and interns employed by our University of California system lack the basic due process rights that are afforded to other public employees. This inequity has left medical residents and interns at risk of unfair discipline and termination without the impartial consideration that an independent hearing officer may afford.”

1. Opponent Arguments:

The University of California writes in opposition:

“The University estimates annual costs of $5-7 million per year and one-time costs of $430,000 to develop and implement new personnel policies at our 10 UC campuses. The annual costs are based on: 1) approximately $80,000-$100,000 per case through hearing, including contract costs for an arbitrator and counsel; 2) approximately 20-25 grievance filings per year; 3) the substantive changes contained in the bill requiring subsequent revisions to collective bargaining agreements and other systemwide policies applicable to non-represented staff and academic employees; and 4) ongoing support for new staff to revise academic personnel policies on campuses. Additionally, the University anticipates (but is not yet able to quantify) both one-time and ongoing costs that would be incurred by UC Health’s academic medical centers to make the similar necessary changes to their personnel policies and procedures.

Beyond fiscal concerns, the University has serious policy concerns with AB 2114. The bill would take academic decision making out of the hands of physicians who are responsible for teaching resident physicians, and who are responsible for assessing the competencies of every resident physician for safe and independent practice, and place it into the hands of a third party arbitrator who would not possess the qualifications for making such assessments.”

1. Prior Legislation:

SB 201 (Skinner) Chapter 854, Statutes of 2017: amended HEERA to provide collective bargaining rights to student employees at the University of California (UC), California State University (CSU), and Hastings College of Law, whose employment is contingent on their status as students.

SUPPORT

American Federation of State, County and Municipal Employees, AFL-CIO

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California Federation of Teachers

California Labor Federation, AFL-CIO

California School Employees Association

California Teamsters Public Affairs Council

Inlandboatmen's Union of the Pacific (IBU)

Professional and Technical Engineers, Ifpte Local 21, AFL-CIO

Unite Here International Union, AFL-CIO

Utility Workers Union of America

OPPOSITION

University of California

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2114

Author:(Rodriguez)

As Amended Ver:June 4, 2020

Majority vote

SUMMARY:

Provides minimum rights, including a due process procedure, for certain employees working for a higher education employer, among other provisions.

Major Provisions

1. Requires a higher education employer to provide a procedure to all medical and dental interns and residents, persons in resident subspecialty programs accredited by the Accreditation Council for Graduate Medical Education (ACGME), and other post-medical doctor degree trainees in programs not accredited by the ACGME to challenge a termination of employment or disciplinary action by the employer. Regarding this procedure:
2. A challenge by an employee must be heard by an impartial hearing officer or arbitrator who must have the power to review the employer's action and provide a remedy for termination or discipline without just cause. If the employ is represented by an exclusive representative, the impartial hearing officer or arbitrator must be jointly selected by the higher education employer and exclusive representative.
3. Establishes the precedence of a memorandum of understanding (MOU) over this statute relating to a procedure for the employee or employee's representative to challenge a termination of employment or disciplinary action, if the MOU provides for this procedure.
4. Exempts application of these provisions to a termination of employment or a disciplinary action based on academic or clinical matters that are excluded from the scope of representation.
5. Defines "academic or clinical matters" to mean those matters that relate to an employee's acquisition of core competencies and the development of the clinical skills necessary to function at the level of the employee's credential in a licensed academic discipline or medical specialty.

COMMENTS:

1. "Employees" in Public Institutions of Higher Education: Relevance to Assembly Bill 2114

Although one could argue whether certain individuals working for a higher education employer covered by the Higher Education Employer-Employee Relations Act (HEERA) are "employees," the following court ruling is significantly relevant to the subject and purposes of this bill.

In Regents of the UC v. Public Employment Relations Board (California Association of Interns and Residents), the court held that substantial evidence supported the Public Employment Relations Board's (PERB) finding that medical housestaff participating in residency programs of clinics, institutes, or hospitals owned or operated by the university were "employees" under Section 3560 et seq. of the HEERA. Here, housestaff spent substantial time on clinical activities and direct patient care, they performed procedures with little or no supervision, they provided professional guidance for interns, medical students, and other hospital employees, and they did not administer procedures on patients "to simply polish their skills." Even if the PERB found that medical housestaff participating in residency programs at clinics, institutes or hospitals owned or operated by the university were motivated by "educational objectives," it may classify them as employees if their objectives are subordinate to services they perform…."^[1]

1. Due Process Rights for Public Employees

In the context of Assembly Bill 2114, termination of employment and disciplinary matters are acutely germane to the HEERA and the scope of representation. Each of these are equally important to both the employer and employee. In addition, the United States (U.S.) Constitution provides that "… nor shall any State deprive any person of life, liberty, or property, without due process of law."^[2] The California Constitution provides that "… a person may not be deprived of life, liberty, or property without due process of law…"^[3]

In the public sector, generally, employees who have a property interest in continued employment are entitled to due process (i.e., notice, investigation, and a hearing) upon a proposed termination (or deprivation) of employment. The reason that these employees have these protections is because they have successfully completed a probationary period during which they were subject to release.^[4] When permanency is acquired, "permanent" employees can be dismissed only for cause as provided by the authorizing procedures. However, due process protections are not afforded to all employees. Those who are at-will (i.e., serve at the pleasure of the appointing authority) do not have a justified expectation in continued employment. Section 2292 of the Labor Code defines an at-will position as "[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other." In addition, those who are probationary and non-tenured employees, also do not have a property interest in continued employment and may be released without cause during their probationary period.^[5] There are some exceptions. For example, classified school employees of school districts have a right to a pre-termination hearing if dismissed for cause or unsatisfactory performance during the school year, but not otherwise. Others who, in general, do not have such rights are temporary and substitute employees when they are hired to fill in for limited-term projects or periods.

Admittedly, employees who receive written or oral reprimands are not entitled to Skelly rights because a reprimand, in and of itself, does not entail the loss of property. It is also acknowledged that precise due process procedures vary regarding employment termination (or deprivation) depending on statute, practice, and other factors.

The purpose of the HEERA is to limit labor strife through a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment between public higher education employers and recognized public employee organizations or their exclusive representatives. This bill maintains the state's fundamental interests in the development and continuity of harmonious and cooperative labor relations between the public institutions of higher education and their employees. .

This bill further accomplishes this by requiring a procedure for certain employees to challenge a termination of employment or disciplinary action by the employer; establishes the precedence of an MOU over a conflicting statutory provision, and ensures that the specified employees in the prescribed employment setting have at least a modicum of rights regarding their employment, especially regarding those matters that may be entered into their employment record that could have substantial negative effects on prospective employment opportunities that are not directly related to academic or clinical matters.

1. Other Important Information

Please see the policy committee analysis for a full discussion of this bill.

According to the Author:

"California has a shortage of healthcare professionals, including practitioners of medicine. These professionals undergo many years of classroom education, then another number of years through a medical residency to obtain real life, on-the-job training that prepares them for the practice of medicine. It is a period during their lives that involves tremendous sacrifice and stress. However, during the on-the-job phase of this educational and employment experience, these individuals may be disciplined or terminated for an infraction that is not directly related to the licensed academic discipline or medical specialty, which can negatively affect their prospective employment opportunities.

This bill simply provides minimum rights in matters regarding termination of employment and discipline for a group of employees that currently are not afforded employment rights, and is a small, but important right for these workers who want to help others. This bill also will help to deal with, in some small way, the shortage of professional healthcare workers."

Arguments in Support:

According to the California State Council of the Service Employees International Union (SEIU California), "California's medical residents employed by the UC system do not enjoy the same due process rights as other public employees, including those employed by our institutions of higher education. This discrimination has left medical residents particularly exposed to unfair disciplines and terminations without the impartial consideration such a decision warrants. These resident physicians are particularly vulnerable – competition is steep and without completion of a residency, these physicians will not become licensed. The stakes are high and stress is extreme. This undue stress has been exacerbated by the COVID-19 pandemic as our approximate 5,500 medical residents do their share in this crisis. Recently, medical residents have received veiled threats of discipline for raising concerns regarding lack of personal protective equipment on their personal social media accounts. Fear of reprisal has chilled their basic free speech rights."

In addition, SEIU California states that, "Even in the absence of COVID-19, the duress medical residents face is untenable with 24 hour shifts and 80 hour [or more] workweeks in an environment renowned for hazing young physicians. With the high financial and personal sacrifices their job requires, no UC employee has more to lose than resident physicians.

Arguments in Opposition:

The University of California opposes this bill stating, among other things, that, "[b]eyond fiscal concerns… the bill would take academic decision making out of the hands of physicians who are responsible for teaching resident physicians, and who are responsible for assessing the competencies of every resident physician for safe and independent practice, and place it in the hands of a third party arbitrator who would not possess the qualifications for making such assessments."

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, this bill would result in "[o]ne-time General Fund (GF) costs of approximately $400,000 for the University of California to develop and implement new system-wide personnel policies and annual GF costs of approximately $80,000 per case that goes to arbitration.

VOTES:

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 5-1-1

YES: Rodriguez, Cooley, Cooper, O'Donnell, Reyes

NO: Fong

ABS, ABST OR NV: Voepel

ASM APPROPRIATIONS: 13-5-0

YES: Gonzalez, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas

NO: Bigelow, Megan Dahle, Diep, Fong, Voepel

UPDATED:

VERSION: June 4, 2020

CONSULTANT: Michael Bolden / P.E. & R. / (916) 319-3957 FN: 0002859

1. See 41 Cal. 3rd 601 (1986). ↑

2. See Fourteenth Amendment, U.S. Constitution. ↑

3. See Section 7 of Article I. ↑

4. See Skelly v. State Personnel Board, 15 Cal.3d 194 (1975) ↑

5. See Lubey v. City and County of San Francisco, 98 Cal.App.3d 340, 346 (1979) ↑

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2114

Author:(Rodriguez) – As Amended Ver:March 10, 2020

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires a higher education employer to provide a procedure for certain non-probationary employees to challenge a disciplinary action. Under this bill, any similar process established by a memorandum of understanding (MOU) would take precedence. This bill does not apply to any disciplinary action based on academic or clinical matters excluded from the scope of representation.

FISCAL EFFECT:

1. One-time General Fund (GF) costs of approximately $400,000 for the University of California (UC) to develop and implement new system-wide personnel policies annual GF costs of approximately $80,000 per case that goes to arbitration.
2. Possible new costs to the California State University (CSU) system of an unknown but significant amount. Ultimate costs depend on the number of employees covered by this bill (See staff comment #3).

COMMENTS:

1. Purpose. According to the author, AB 2114 will provide a minimum level of rights to medical residents, a group of employees currently not afforded certain employment rights. This bill will give these individuals an ability to challenge any disciplinary action not directly related to their academic or clinical performance. The author notes that these types of disciplinary actions can “negatively affect their prospective employment opportunities.”
2. Background. Existing law establishes the Higher Education Employer-Employee Relations Act (HEERA) to provide a statutory framework to regulate labor relations at UC, CSU, and Hastings College of Law and their employees. The HEERA explicitly requires that higher education employers (or their designated representatives) meet and confer with the employee organization that is the exclusive representative of an appropriate unit on all matters within the scope of representation. Generally, the scope of representation is those matters involving wages, hours, and other terms and conditions of employment.
3. CSU costs. CSU opposes this bill and argues that the use of the term “nonprobationary” is vague and could be interpreted to include a wide array of employees not intended by the author. CSU notes that currently, the CSU system classifies employees as either probationary, permanent, temporary or at-will. Costs could be eliminated by clarifying this bill’s scope.
4. Recent bills. SB 201 (Skinner), Chapter 854, Statutes of 2017, amended the HEERA to provide collective bargaining rights to student employees at UC, CSU, and Hastings College of Law, whose employment is contingent on their status as students.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: May 5, 2020

ASSEMBLY COMMITTEE ON PUBLIC EMPLOYMENT AND RETIREMENT

Freddie Rodriguez, Chair

ABPCA Bill Id:AB 2114 (

Author:Rodriguez) – As Amended Ver:March 10, 2020

SUBJECT: Higher Education Employer-Employee Relations Act: procedures relating to employee termination or discipline

SUMMARY: Provides minimum rights, including due process, for specified nonprobationary employees working for a higher education employer, as provided, among other provisions. Specifically, this bill:

1. Requires a higher education employer to provide a procedure to nonprobationary employees who are not members of the academic senate to challenge a termination of employment or disciplinary action by the employer. Regarding this procedure:
2. A challenge by an employee must be heard by an impartial hearing officer or arbitrator who must have the power to review the employer’s action and provide a remedy for termination or discipline without just cause. If the employ is represented by an exclusive representative, the impartial hearing officer or arbitrator must be jointly selected by the higher education employer and exclusive representative.
3. Establishes the precedence of a memorandum of understanding (MOU) over this statute relating to a procedure for the employee or employee’s representative to challenge a termination of employment or disciplinary action, if the MOU provides for this procedure.
4. Exempts application of these provisions to a termination of employment or a disciplinary action based on academic or clinical matters that are excluded from the scope of representation.
5. Defines “academic or clinical matters” to mean those matters that relate to an employee’s acquisition of core competencies and the development of the clinical skills necessary to function at the level of the employee’s credential in an academic discipline or medical specialty.

EXISTING LAW:

1. Governs collective bargaining in the private sector under the federal National Relations Labor Relations Act (NLRA) but leaves it to the states to regulate collective bargaining in their respective public sectors.

While the NLRA and the decisions of its National Labor Relations Board often provide persuasive precedent in interpreting state collective bargaining law, public employees have no collective bargaining rights absent specific statutory authority establishing those rights.

1. Provides several statutory frameworks under California law to provide public employees collective bargaining rights, govern public employer-employee relations, and limit labor strife and economic disruption in the public sector through a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment between public employers and recognized public employee organizations or their exclusive representatives. These include the Higher Education Employer-Employee Relations Act (HEERA) of 1979 which provides for public employer-employee relations between employees of the UC, California State University, and Hastings College of Law.
2. Establishes the Public Employment Relations Board (PERB), a quasi-judicial administrative agency charged with administering certain statutory frameworks governing employer-employee relations, resolving disputes, and enforcing the statutory duties and rights of public agency employers and employee organizations, but provides the City and County of Los Angeles a local alternative to PERB oversight.

FISCAL EFFECT: Unknown. This bill is flagged as fiscal by Legislative Counsel.

COMMENTS: According to the author, “California has a shortage of healthcare professionals, including practitioners of medicine. These professionals undergo many years of classroom education, then another number of years through a medical residency to obtain real life, on-the-job training that prepares them for the practice of medicine. It is a period during their lives that involves tremendous sacrifice and stress. However, during the on-the-job phase of this educational and employment experience, these individuals may be disciplined or terminated for an infraction that is not directly related to the academic or clinical performance, which can negatively affect their prospective employment opportunities.

This bill simply provides minimum rights in matters regarding termination of employment and discipline for a group of employees that currently are not afforded employment rights, and is a small, but important right for these workers who want to help others. This bill also will help to deal with, in some small way, the shortage of professional healthcare workers."

1. Rights and Obligations of Employers, Employees and Employee Organizations Under the HEERA, Generally

The HEERA explicitly requires that higher education employers (or their designated representatives) meet and confer with the employee organization that is the exclusive representative of an appropriate unit on all matters within the scope of representation. Generally, the scope of representation are those matters involving wages, hours, and other terms and conditions of employment. Similarly, the employee organization is obligated to meet and confer with the employer; thus, both parties have a duty to bargain. A failure to adhere to the rights, obligations and prohibitions by either a higher education employer or employee organization pursuant to the HEERA permits either party to file a grievance in the form of an unfair labor practice with the PERB.

1. The Scope of Representation Under the HEERA

As previously stated, the scope of representation are those matters involving wages, hours, and other terms and conditions of employment. Generally, under the HEERA, the scope of representation is limited to these matters and certain items are expressly excluded. Matters that are excluded are reserved to the employer and may not be subject to meeting and conferring, provided that nothing in statute is construed to limit the right of the employer to consult with employees or employee organization on any matter outside the scope of representation.^[1]

At times, whether a matter is within the scope of representation is litigated. For example: In a case involving excluding the members of a union who were employees of the California State University (a HEERA-covered employers) from newly-built parking structures, the court held that a subject is within the scope of representation by higher education employees’ exclusive bargaining representatives as a “term or condition of employment” if: 1) it involves the employment relationship, 2) it is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective bargaining is an appropriate means of resolving the conflict, and 3) the employer’s obligation to negotiate would not unduly abridge its freedom to exercise those managerial prerogatives, including matters of fundamental policy, essential to the achievement of the employer’s mission.^[2] In this case, the availability of parking and its costs were matters of concern to employees, and the terms and conditions of employment under which parking was available were plainly germane to working conditions. That conclusion was supported by the fact that parking fees were expressly dealt with as a benefit of employment in the agreement.

The termination if employment and disciplinary matters, both inherently involving the terms and conditions of employment, are very likely within the scope of representation because 1) they each involve the employment relationship, 2) are a concern to both management and employees, and 3) negotiating these matters would not abridge the freedoms of management to exercise its prerogatives, and thus, would involve some due process rights relating to Assembly Bill 2114.

1. “Employees” in Public Institutions of Higher Education: Relevance to Assembly Bill 2114

Although one could argue whether certain individuals working for a higher education employer covered by the HEERA are “employees,” the following court ruling is significantly relevant to the subject and purposes of this bill.

In Regents of the UC v. Public Employment Relations Board (California Association of Interns and Residents), the court held that substantial evidence supported the PERB’s finding that medical housestaff participating in residency programs of clinics, institutes, or hospitals owned or operated by the university were “employees” under Section 3560 et seq. of the HEERA. Here, housestaff spent substantial time on clinical activities and direct patient care, they performed procedures with little or no supervision, they provided professional guidance for interns, medical students, and other hospital employees, and they did not administer procedures on patients “to simply polish their skills.” Even if the PERB found that medical housestaff participating in residency programs at clinics, institutes or hospitals owned or operated by the university were motivated by “educational objectives,” it may classify them as employees if their objectives are subordinate to services they perform….”^[3]

1. Due Process Rights for Public Employees

In the context of Assembly Bill 2114, termination of employment and disciplinary matters are acutely germane to the HEERA and the scope of representation. Each of these are equally important to both the employer and employee. In addition, the United States (U.S.) Constitution provides that “… nor shall any State deprive any person of life, liberty, or property, without due process of law.”^[4] The California Constitution provides that “… a person may not be deprived of life, liberty, or property without due process of law…”^[5]

In the public sector, generally, employees who have a property interest in continued employment are entitled to due process (i.e., notice, investigation, and a hearing) upon a proposed termination (or deprivation) of employment. The reason that these employees have these protections is because they have successfully completed a probationary period during which they were subject to release.^[6] When permanency is acquired, “permanent” employees can be dismissed only for cause as provided by the authorizing procedures. However, due process protections are not afforded to all employees. Those who are at-will (i.e., serve at the pleasure of the appointing authority) do not have a justified expectation in continued employment. Section 2292 of the Labor Code defines an at-will position as “[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other.” In addition, those who are probationary and non-tenured employees, also do not have a property interest in continued employment and may be released without cause during their probationary period.^[7] There are some exceptions (for example: classified school employees of school districts have a right to a pre-termination hearing if dismissed for cause or unsatisfactory performance during the school year, but not otherwise). Others who, in general, do not have such rights are temporary and substitute employees when they are hired to fill in for limited-term projects or periods.

Admittedly, employees who receive written or oral reprimands are not entitled to Skelly rights because a reprimand, in and of itself, does not entail the loss of property. It is also is acknowledged that precise due process procedures vary regarding employment termination (or deprivation) depending on statute, practice, and other factors. However, this bill maintains the state’s fundamental interests in the development and continuity of harmonious and cooperative labor relations between the public institutions of higher education and their employees. The purpose of the HEERA is to limit labor strife through a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment between public higher education employers and recognized public employee organizations or their exclusive representatives.

Assembly Bill 2114 further accomplishes this by requiring a procedure for certain employees to challenge a termination of employment or disciplinary action by the employer; establishes the precedence of an MOU over a conflicting statutory provision, and ensures that the specified employees in the prescribed employment setting have at least a modicum of rights regarding their employment, especially regarding those matters that may be entered into their employment record that could have substantial negative effects on prospective employment opportunities that are not directly related to academic or clinical matters.

1. Comments by Supporters

According to the California State Council of the Service Employees International Union (SEIU California), “California’s medical residents employed by the UC system do not enjoy the same due process rights as other public employees, including those employed by our institutions of higher education. This discrimination has left medical residents particularly exposed to unfair disciplines and terminations without the impartial consideration such a decision warrants. These resident physicians are particularly vulnerable – competition is steep and without completion of a residency, these physicians will not become licensed. The stakes are high and stress is extreme. This undue stress has been exacerbated by the COVID-19 pandemic as our approximate 5,500 medical residents do their share in this crisis. Recently, medical residents have received veiled threats of discipline for raising concerns regarding lack of personal protective equipment on their personal social media accounts. Fear of reprisal has chilled their basic free speech rights.”

In addition, SEIU California states that, “Even in the absence of COVID-19, the duress medical residents face is untenable with 24 hour shifts and 80 hour [or more] workweeks in an environment renowned for hazing young physicians. With the high financial and personal sacrifices their job requires, no UC employee has more to lose than resident physicians. Despite their countless hours of service and fierce dedication to care, resident physicians are the most vulnerable employee group in the UC system. A recent survey found the following:

• 40 percent felt bullied by an attending physician.
• They are 2 times more likely to commit suicide.
• Female doctors are 4 times more likely to commit suicide than women in other professions.
• 28 percent have fallen asleep at the wheel post-call.
• 10 percent of first year and fourth year medical students report having suicidal thoughts.
• 62 percent felt so burned out that it affected their work.
• Residents have increasing workloads with no match of resources or time.
• Residents don’t feel empowered to talk about their issues with administration.
• Dysfunctional culture of medicine encourages residents to endure abuse in the workplace.”

In closing, SEIU California states that, “Assembly Bill 2114 is neither radical nor a departure from current law it simply provides an impartial review of disciplinary and termination matters that are unrelated to academic or clinical matters. There is no reason to continue to deny medical residents the equal treatment that is afforded to other public employees.”

1. Prior or Related Legislation

Chapter 854, Statutes of 2017 (Senate Bill 201, Skinner) amended the HEERA to provide collective bargaining rights to student employees at the University of California (UC), California State University (CSU), and Hastings College of Law, whose employment is contingent on their status as students.

REGISTERED SUPPORT / OPPOSITION:

Support

California State Council of the Service Employees International Union (Sponsor)

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California School Employees Association

California Teamsters Public Affairs Council

Engineers & Scientists of California, Local 20, Ifpte, Afl-cio

Inlandboatmen's Union of the Pacific

Professional and Technical Engineers, Ifpte Local 21, Afl-cio

Unite Here International Union, Afl-cio

Utility Workers Union of America

Opposition

None on file

Analysis Prepared by: Michael Bolden / P.E. & R. / (916) 319-3957

1. See Section 3562 (q) of the Government Code. ↑

2. See California Faculty Association v. Public Employment Relations Board, 160 Cal.App.4th 609 (2008) ↑

3. See 41 Cal. 3rd 601 (1986). ↑

4. See Fourteenth Amendment, U.S. Constitution. ↑

5. See Section 7 of Article I. ↑

6. See Skelly v. State Personnel Board, 15 Cal.3d 194 (1975) ↑

7. See Lubey v. City and County of San Francisco, 98 Cal.App.3d 340, 346 (1979) ↑