Existing law that governs the labor relations of public employees and employers, including including, among others, the Meyers-Milias-Brown Act, the Ralph C. Dills Act, provisions relating to public schools, and provisions relating to higher education, and provisions relating to the San Francisco Bay Area Rapid Transit District, prohibits employers from taking certain actions relating to employee organization, including imposing or threatening to impose reprisals on employees, discriminating or threatening to discriminate against employees, or otherwise interfering with, restraining, or coercing employees because of their exercise of their guaranteed rights. Those provisions of existing law further prohibit denying to employee organizations the rights guaranteed to them by existing law.

This bill would also prohibit a local public agency employer, a state employer, a public school employer, a higher education employer, or the district public employer from questioning any employee or employee representative a public employee, a representative of a recognized employee organization, or an exclusive representative regarding communications made in confidence between an employee and an employee representative in connection with representation relating to any matter within the scope of the recognized employee organizations representation. The bill would also prohibit a public employer from compelling a public employee, a representative of a recognized employee organization, or an exclusive representative to disclose those confidential communications to a third party. The bill would not apply to a criminal investigation or when a public safety officer is under investigation and certain circumstances exist.

Existing law that governs the labor relations of public employees and employers, including the Meyers-Milias-Brown Act, the Ralph C. Dills Act, provisions relating to public schools, provisions relating to higher education, and provisions relating to the San Francisco Bay Area Rapid Transit District, prohibits employers from taking certain actions relating to employee organization, including imposing or threatening to impose reprisals on employees, discriminating or threatening to discriminate against employees, or otherwise interfering with, restraining, or coercing employees because of their exercise of their guaranteed rights. Those provisions of existing law further prohibit denying to employee organizations the rights guaranteed to them by existing law.

This bill would also prohibit a local public agency employer, a state employer, a public school employer, a higher education employer, or the district from questioning any employee or employee representative regarding communications made in confidence between an employee and an employee representative in connection with representation relating to any matter within the scope of the recognized employee organizations representation.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anna Caballero, Chair

2025 - 2026 Regular Session

AB 340 (Ahrens) - Employer-employee relations: confidential communications

Bill Summary:

AB 340 would prohibit a public employer from (1) questioning an employee or employee representative regarding representation-related communications made in confidence between the employee and employee representative, and (2) compelling disclosure of such communications to a third party. These two prohibitions would not apply to a criminal investigation or supersede rights of public safety officers under investigation.

Fiscal Impact:

• This bill would result in one-time costs to the State as a direct employer, to update collective bargaining agreements and related policies and trainings, including policies regarding workplace investigations and allowable communications between represented employees and their employer. The magnitude is unknown, but minimally in the low millions of dollars (General Fund and special funds). As an example, the California Community College (CCC) Chancellor’s Office estimates one-time costs between $936,000 and $1.6 million (costs between $13,000 and $22,000 per district) to implement this prohibition across its CCC’s 72 districts (Proposition 98 General Fund).
• By limiting the type of information an employer may obtain, this bill additionally could result in investigation costs to the State related to preparation for an administrative or civil proceeding. The magnitude is unknown (General Fund and special funds).
• The California Department of Human Resources (CalHR) would incur first-year costs of $169,000, and $159,000 annually thereafter to support one additional Labor Relations Specialist position. (General Fund).
• The bill would not have a fiscal impact to the Public Employment Relations Board (PERB).

Background:

With respect to public employees, PERB has found that communications between an employee and their employee representative are protected from disclosure to an employer in some circumstances. However, case law and statute currently has not provided an employee and employee representative with an evidentiary privilege, in which the communication cannot be compelled to be disclosed or used as evidence in a court proceeding, for their communications.

Proposed Law:

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

• Prohibit a public employer from questioning a public employee, a representative of a recognized employee organization, or an exclusive representative regarding communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation.
• Prohibit a public employer from compelling a public employee, a representative of a recognized employee organization, or an exclusive representative to disclose to a third party, communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation.
• Provide that it would not apply to apply to a criminal investigation and do not supersede Government Code Section 3303, which provides public safety officers specified rights under the Public Safety Officers Procedural Bill of Rights Act when they are under investigation and subjected to interrogation, as specified.

Related Legislation:

• AB 1109 (Kalra) would establish an evidentiary privilege from disclosure for confidential communications between a union agent and a represented employee or represented former employee, as provided. This bill is currently pending in this Committee.
• AB 2421 (Low) would have prohibited specified public employers from questioning employees and employee representatives about communications between employees and employee representatives related to the representative’s representation, with an exception. The bill was held under submission on the Suspense File of this Committee.
• AB 418 (Kalra, 2019) would have established an evidentiary privilege from disclosure for communications between a union agent and a represented employee or represented former employee. The bill died on the Senate Inactive File.
• AB 3121 (Kalra, 2018) would have established an evidentiary privilege from disclosure for communications between a union agent and a represented employee or represented former employee. The bill died on the Senate Inactive File.
• AB 729 (Hernández, 2013) would have provided a union agent and a represented employee a privilege of refusing to disclose any confidential communication between the employee or former employee and the union agent while the union agent is acting in their representative capacity, except as specified. The bill was vetoed by Governor Brown.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2025-2026 Regular Session

Bill No: AB 340 (Author:Ahrens)

Version: March 5, 2025

Hearing Date: July 15, 2025

Fiscal: Yes

Urgency: No

Consultant: ME

SUBJECT

Employer-employee relations: confidential communications

DIGEST

This bill prohibits a public employer from questioning public employees and employee representatives regarding communications made in confidence between them in connection with representation relating to any matter within the scope of the recognized employee organization’s representation. This bill also prohibits a public employer from compelling a public employee and an employee representative from disclosing their communications made in confidence to a third party. These prohibitions do not apply to criminal investigations and do not supersede provisions of law relating to the interrogation procedures of public safety officers under investigation.

EXECUTIVE SUMMARY

The inviolability of the employee-union representative relationship is essential to an employee’s representation and to the guarding of an employee’s rights to self-organization and collective bargaining. In the context of public employees, the Public Employment Relations Board (PERB) has found that communications between an employee and their employee representative are protected from disclosure to an employer in some circumstances. However, case law and statute so far has not provided an employee and employee representative with an evidentiary privilege, in which the communication cannot be compelled to be disclosed or used as evidence in a court proceeding, for their communications. This bill proposes to prohibit public employers from questioning their employees regarding communications between an employee and an employee representative regarding a matter within the scope of that representation and also prohibits a public employer from compelling a public employee and an employee representative to disclose to a third party, communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation. This bill provides an exception to this prohibition that specifies that such communications are not confidential in a criminal investigation. This bill is sponsored by the Peace Officers’ Research Association of California, and is supported by a broad coalition of labor unions, including the California Professional Firefighters. It is opposed by several governmental entities and the California Chamber of Commerce. This bill passed out of the Senate Labor, Public Employment and Retirement Committee on a vote of 4 to 1.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Establishes the Meyers-Milias-Brown Act of 1968 to establish collective bargaining rights for municipal, county, and local special district employers and employees. Provides that public employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations. (Gov. Code §§ 3500 et seq.)
2. Establishes the Public Employment Relations Board (PERB) and provides it with the powers to: determine and approve appropriate bargaining units; determine whether a particular item is within the scope of representation; arrange for and supervise representation elections by secret ballot; certify the results of elections; establish lists of persons to be available to serve as mediators, arbitrators, or factfinders; establish appropriate procedures for reviewing bargaining unit determinations; conduct studies relating to employer-employee relations; adopt rules and regulations; hold hearings, subpoena witnesses, administer oaths and take testimony or deposition of any person; to investigate unfair practice charges and take any action and make any determinations on such charges; bring an action in court to enforce its orders, rulings, and subpoenas; delegate its powers to any member of the board or person appointed by the board to perform its functions; decide contested matters regarding the certification or decertification of employee organizations; consider and decide issues relating to the rights, privileges, and duties of an employee organization; and to take any other action the board deems necessary to discharge its powers and duties. (Gov. Code § 3540 et seq.)
3. Makes it unlawful for governmental subdivisions, districts, public and quasi-public corporations, public agencies, and every town, city, county, city and county, and municipal corporation from doing any of the following:
   1. Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise interfere with their exercise of their labor rights;
   2. Deny an employee organization any labor rights;
   3. Refuse or fail to meet and negotiate in good faith with a recognized employee organization;
   4. Dominate or interfere with the formation or administration of an employee organization, contribute financial or other support to any employee organization, or encourage employees to join any organization in preference over another; and
   5. Refuse to participate in good faith in an impasse procedure. (Gov. Code § 3506.5.)
4. Makes it unlawful for the state to do any of the following:
   1. Impose or threaten to impose reprisals on employees, discriminate or threaten to discriminate against employees, or otherwise interfere with their exercise of their labor rights;
   2. Deny an employee organization any labor rights;
   3. Refuse or fail to meet and confer in good faith with a recognized employee organization;
   4. Dominate or interfere with the formation or administration of an employee organization, contribute financial or other support to any employee organization, or encourage employees to join any organization in preference over another; and
   5. Refuse to participate in good faith in a mediation procedure. (Gov. Code § 3519.)
5. Makes it unlawful for Judicial Council to do any of the following:
   1. Impose or threaten to impose reprisals on employees, discriminate or threaten to discriminate against employees, or otherwise interfere with their exercise of their labor rights;
   2. Deny an employee organization any labor rights;
   3. Refuse or fail to meet and confer in good faith with a recognized employee organization;
   4. Dominate or interfere with the formation or administration of an employee organization, contribute financial or other support to any employee organization, or encourage employees to join any organization in preference over another; and
   5. Refuse to participate in good faith in a mediation procedure. (Gov. Code § 3524.71.)
6. Makes it unlawful for a public school employer to do any of the following:
   1. Impose or threaten to impose reprisals on employees, discriminate or threaten to discriminate against employees, or otherwise interfere with their exercise of their labor rights;
   2. Deny an employee organization any labor rights;
   3. Refuse or fail to meet and confer in good faith with an exclusive employee organization, or knowingly provide the exclusive representative with inaccurate information;
   4. Dominate or interfere with the formation or administration of an employee organization, contribute financial or other support to any employee organization, or encourage employees to join any organization in preference over another; and
   5. Refuse to participate in good faith in an impasse procedure. (Gov. Code § 3543.5.)
7. Makes it unlawful for an institution of higher education to do any of the following:
   1. Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise interfere with their exercise of their labor rights;
   2. Deny an employee organization any labor rights;
   3. Refuse or fail to meet and confer in good faith with an exclusive representative;
   4. Dominate or interfere with the formation or administration of an employee organization, contribute financial or other support to any employee organization, or encourage employees to join any organization in preference over another;
   5. Refuse to participate in good faith in an impasse procedure; and
   6. Consult with any academic, professional, or staff advisory group on a matter within the scope of representation for employees who are represented by an exclusive representative. (Gov. Code § 3571.)
8. Makes it unlawful for the San Francisco Bay Area Rapid Transit District to do any of the following:
   1. Impose or threaten to impose reprisals on employees, discriminate or threaten to discriminate against employees, or otherwise interfere with their exercise of their labor rights;
   2. Deny an employee organization any labor rights;
   3. Refuse or fail to meet and confer in good faith with an exclusive representative, or knowingly provide an exclusive representative with inaccurate information;
   4. Dominate or interfere with the formation or administration of an employee organization, contribute financial or other support to any employee organization, or encourage employees to join any organization in preference over another; and
   5. Refuse to participate in good faith in mutually agreed upon impasse procedures. (Pub. Util. Code § 28858.)

1. Makes it unlawful for the Santa Cruz Metropolitan Transit District to do any of the following:
   1. Impose or threaten to impose reprisals on employees, discriminate or threaten to discriminate against employees, or otherwise interfere with their exercise of their labor rights;
   2. Deny an employee organization any labor rights;
   3. Refuse or fail to meet and confer in good faith with an exclusive representative, or knowingly provide an exclusive representative with inaccurate information;
   4. Dominate or interfere with the formation or administration of an employee organization, contribute financial or other support to any employee organization, or encourage employees to join any organization in preference over another; and
   5. Refuse to participate in good faith in mutually agreed upon impasse procedures. (Pub. Util. Code § 98169.)
2. Makes it unlawful for a public transit district employer to do any of the following:
   1. Impose or threaten to impose reprisals on employees, discriminate or threaten to discriminate against employees, or otherwise interfere with their exercise of their labor rights;
   2. Deny an employee organization any labor rights;
   3. Refuse or fail to meet and confer in good faith with an exclusive representative;
   4. Dominate or interfere with the formation or administration of an employee organization, contribute financial or other support to any employee organization, or encourage employees to join any organization in preference over another; and
   5. Refuse to participate in good faith in an impasse procedure, as specified. (Pub. Util. Code § 99563.7.)
3. Makes it unlawful for the Sacramento Regional Transit District to do any of the following:
   1. Impose or threaten to impose reprisals on employees, discriminate or threaten to discriminate against employees, or otherwise interfere with their exercise of their labor rights;
   2. Deny an employee organization any labor rights;
   3. Refuse or fail to meet and confer in good faith with an exclusive representative;
   4. Dominate or interfere with the formation or administration of an employee organization, contribute financial or other support to any employee organization, or encourage employees to join any organization in preference over another; and
   5. Refuse to participate in good faith in mutually agreed upon impasse procedures. (Pub. Util. Code § 102406.)

This bill:

1. Prohibits a public employer from questioning a public employee, a representative of a recognized employee organization, or an exclusive representative regarding communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation.
2. Provides that 1), above, is intended to be consistent with, and not in conflict with, William S. Hart Union High School District (2018) PERB Dec. No. 2595.
3. Prohibits a public employer from compelling a public employee, a representative of a recognized employee organization, or an exclusive representative to disclose to a third party, communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation.
4. Provides that notwithstanding 1)-3), above, this bill does not apply to a criminal investigation and does not supersede Government Code Section 3303 which are provisions of law relating to the interrogation procedures of a public safety officer under investigation.

COMMENTS

1. Stated need for the bill

Many employees believe discussions about their jobs with their union representative are private and cannot be shared with their employer. However, the law does not stop employers from compelling employees or their representatives to share these conversations. AB 340 would address this issue by creating a standard that employee-union representative conversations are protected to create a safe space for employees to discuss their rights and concerns with their union representatives.

1. Evidentiary privileges and confidentiality protections

California and federal law recognizes in various contexts that the importance of certain relationships requires that those relationships and communications made pursuant to them be protected from forced disclosure. For example, for the attorney-client relationship, the law generally recognizes the need for the client to be free to speak candidly with their attorney, and thus rules of professional conduct and evidence preclude an attorney from disclosing or being required to disclose things that their client has told them in the course of representation. This protection typically takes two forms: a guarantee in the confidentiality of the communication, and a protection against compelled disclosure in a judicial proceeding.

The second form is what is called an evidentiary privilege, and it generally prohibits a court from compelling any person to disclose or testify about communications covered by the privilege. Thus, an evidentiary privilege is a protection of the communications under the privilege being used against one of the parties to the privilege in court, thereby excluding the evidence contained in the communication from the proceeding. The exclusion is irrelevant to the reliability or importance of the privileged information, and is generally absolute. California has created a number of statutory evidentiary privileges, including: the attorney-client privilege; lawyer referral service-client privilege; spousal privilege; physician-patient privilege; clergyman-penitent privilege; sexual assault counselor-victim privilege; and the privilege against self-incrimination. (Ev. Code § 930 et seq.)

The differences between an evidentiary privilege and a guarantee of confidentiality are important. Privileges generally prevent the introduction of certain communications or testimony in court. Rules guaranteeing confidentiality, however, do not. Thus, while a court cannot compel a witness to testify about privileged information, it may compel testimony of confidential communications, in certain circumstances. Moreover, if the confidential information is obtained by a third-party in another way, it may be disclosed to another party and in court. Thus, a duty of confidentiality is far less broad and can be subject to various exceptions.

1. AB 340 prohibits public employers from questioning employees and employee representatives about their communications

AB 340 proposes to create a rule ensuring the confidentiality of communications between an employee and their employee representative. It would specifically prohibit a public employer from questioning an employee or their employee representative regarding communications made in confidence between an employee and an employee representative in connection with the representation. The bill also would provide that a public employer shall not compel a public employee, a representative of a recognized employee organization, or an exclusive representative to disclose to a third party, communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation.

AB 340’s prohibitions are not absolute. Rather, they apply narrowly: they only apply to communications made in confidence, between the employee and their representative, and the communication must be in connection to the union’s representation. The bill does not prohibit other entities from questioning an employee or their representative about the confidential communications, such as a third-party or a court. Thus, a court may still require an employee or their employer to testify in court about their communications. Additionally, AB 340 provides an exception to its prohibition by expressly providing that the prohibitions in the bill do not apply to a criminal investigation. Under this exception, a public employer may still question the employee or their union representative, though arguably this only applies to questioning regarding the event underlying the criminal investigation.

By prohibiting an employer from questioning an employee or employee representative, AB 340 creates an unlawful employment practice for any public employer to violate that prohibition. Public employees covered by the Public Employment Relations Board’s (PERB) jurisdiction would not be able to file a civil action in court for a violation of AB 340’s provisions; their exclusive remedy would be before PERB. Thus, an aggrieved public employee covered by PERB could allege an unlawful employment practice with PERB, or raise it in any pending action before the board, when their employer attempts to question them contrary to the prohibitions created by AB 340. If an employee is discharged for refusing to answer an employer’s questions that violate this section, the employee could also file an unlawful employment practice charge with PERB based on that discharge.

1. Judicial decisions regarding whether communications between an employee and union representative

The existence of confidentiality between an employee and their employee representative is not an entirely new concept. In American Airlines, Inc. v. Superior Court (2003) 114 Cal.App.4th 881, the court held that California law does not impliedly provide for an employee-union representative privilege, but that, instead, the creation of evidentiary privileges is “the province of the Legislature.” (American Airlines, Inc. v. Superior Court (2003) 114 Cal.App 4th 881, 890.) Yet that case only dealt with the question of whether an evidentiary privilege existed, and not with the question of whether an employer can compel an employee to answer questions about communications between an employee and their union representative. In Cook Paint v. Varnish Co., the National Labor Relations Board (NLRB) recognized that allowing an employer to compel disclosure “manifestly restrains employees in their willingness to candidly discuss matters with their chosen, statutory representatives” and “inhibits [union] stewards in obtaining needed information from employees” for their representation. (Cook Paint v. Varnish Co. (1981) 258 N.L.R.B. 1230, 1232.) Thus, the NLRB found that, when an employer compels disclosure of conversations between an employee and their union steward, it interferes with the employee’s right to engage in concerted activities and collectively bargain. (Id.)

While Cook Paint related to the National Labor Relations Act (NLRA) and not state labor law, its reasoning has also been applied in the context of public employees in California as well. In California School Employees Association v. William S. Hart Union High School District, PERB cited to Cook Paint to find that a public school district impermissibly questioned a union representative about the substance of conversations she had with employee members of the bargaining unit under the Educational Employment Relations Act. (California School Employees Association v. William S. Hart Union High School District (2018) PERB Decision No. 2595, p. 7.) In that case, PERB determined that the harm to employees’ protected labor rights outweighed the interest the employer had to investigate an alleged improper relationship between an employee and the union representative. In another case, PERB adopted a three-part test of the NLRB for determining when an employer’s questions of an employee or union representative during a deposition interfere with the protected labor rights of public employees under PERB-administered statutes. (Victor Valley Teachers Association v. Victor Valley Union High School District (2022) PERB Decision No. 2822.) The standard adopted by PERB in that case provides that questioning in a deposition may be permissible if: the questioning is relevant; the questioning does not have an illegal objective; and if the employer’s interest in obtaining the information outweighs the employees’ protected rights. (Id., p. 11.)

These PERB cases recognize the importance of the employee-employee representative relationship, as well as the risk that the questioning of an employee or employee representative about communications between the employee and representative pose to an employee’s rights to engage in self-organization and collective bargaining. However, they do not create an evidentiary privilege for employee-employee representative communications, and they also do not create a strict rule of confidentiality. Instead, they allow an employer to question an employee or employee representative in a variety of instances, based on the employer’s need for the information and a balancing test between that need and the employee’s rights.

AB 340 provides a more robust guarantee of confidentiality. However, it also includes an exception for the purpose of ensuring that an employer can still question the employee or employee representative during a criminal investigation.

1. Arguments in support

According to the Peace Officers Research Association of California, which is the sponsor of AB 340:

This bill would codify existing decisions of the California Public Employment Relations Board which prohibit public employers from coercing union representatives and interfering in the representation of union members by questioning union representatives and members regarding communications made in confidence between an employee and an employee representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation. The prohibition on such questioning is limited to public employers, so it would not affect criminal investigations conducted by separate and independent third parties, but employers could not compel disclosure of communications or order disclosure to third parties connected to or acting on behalf of the public employer.

This bill amends collective bargaining statutes to make clear that public employers and those acting on their behalf commit an unfair labor practice by questioning union members or their labor representatives about communications between represented employees and their union representatives about matters within the scope of union representation. In short, this bill would recognize the confidentiality of those communications and preclude public employers from interfering with union representation, which benefits every public sector union and public employee in California.

The bill would also provide that communications between an employee and their employee representative would not be confidential if the representative was a witness or party to any of the events forming the basis of a potential administrative disciplinary or criminal investigation. This exception is limited to disciplinary investigations and criminal investigations and is consistent with the peace officer and firefighter bill of rights. This exception does not apply to representation in grievances and unfair practice cases.

The bill does not create a privilege equal to attorney/client or doctor/patient privileges. No privilege would exist in a civil or criminal proceeding where someone other than the employing agency or its agents sought evidence regarding those communications. For example, if an employee brought a sexual harassment lawsuit, this prohibition against employer interrogations would not prevent the plaintiff from being able to force the union representative to testify to their communications. The bill also does not preclude public employers from questioning union representatives about things they personally observed as percipient witnesses when those observations are distinct from confidential communications with union members about union representation and union matters.

Our bill is modest and balanced. It prevents public agencies from interfering in union representation matters and communications in a host of circumstances, but it does not create a statutory privilege. In fact, the prohibited conduct would merely constitute an unfair labor practice to be adjudicated by PERB.

1. Arguments in opposition

A coalition of public employers, including the League of California Cities, California State Association of Counties, California School Boards Association, and others write the following in opposition to AB 340:

[ . . . ] In order to conduct proper investigations that uphold the public’s trust, protect against the misuse of public funds, and ensure the safety and well-being of both public employees and the public at large, it is critical that a public employer has the ability to interview all individuals with relevant information to ascertain the facts and understand the matter fully. AB 340 would increase investigation and litigation costs for the state as well as local governments and schools by creating incomplete investigations, since all appropriate employees with relevant information cannot be questioned. Costs and risks may also increase as conduct challenged as unlawful under the bill’s provisions is adjudicated before the Public Employment Relations Board (PERB). For schools, this is a drain of Proposition 98 funding.

Inconsistent with PERB Decision

AB 340 states that its prohibition on employer questioning is intended to be consistent with, and not in conflict with, William S. Hart Union High School District (2018) PERB Dec. No. 2595. This is problematic for two reasons. First, the bill is inconsistent with that PERB decision. That decision engaged in a circumstantial analysis to determine whether employer questioning was prohibited or not, while weighing the employee’s and the employer’s interests. AB 340 goes far beyond that, forgoing any circumstantial analysis or weighing of interests. It categorically prohibits questioning of confidential employee

Representative communications, except for narrow, limited exceptions. Second, we are not aware of evidence that PERB is denying the interests of employees on this issue, raising the question of whether a legislative solution is warranted.

Expansion of New One-Sided Standard

AB 340 would create a de facto prohibition on employers requesting a court to compel disclosure of purportedly confidential communications, which is the same outcome as if the communication was privileged in those circumstances. This will have a significant impact on judicial and administrative proceedings.

Endangers Workplace Safety

AB 340 interferes with the ability to interview witnesses because it would prohibit public agencies from questioning any employee or “representative of a recognized employee organization, or an exclusive representative” about communications between an employee and a “representative of a recognized employee organization, or an exclusive representative.” While AB 340 includes a narrow exception for criminal investigations, and provides that it does not supersede Gov. Code 3303, many necessary investigations are still subject to the bill’s limitations, putting safety at risk.

This bill would hinder employees who wish to voluntarily report an incident or testify in front of necessary misconduct investigations since an employer would be prohibited from certain lines of questioning. It would also limit the ability of public employers to carry out the requirements of recently enacted law, Senate Bill 553 (Cortese, 2023), which includes conducting investigations into workplace safety, harassment, and other allegations. As of January 1, 2025, SB 553 allows collective bargaining representatives standing to seek temporary restraining orders (TRO) in connection with workplace violence. AB 340 will create a problematic scenario wherein a TRO may be obtained but an employer could not fully investigate the underlying facts. AB 340 lacks guardrails to prevent potential conflicts of interest that could arise during employee safety issues.

Specific to local educational agencies, TROs are being sought by teachers and classroom aides against students with a disability, who may not have full control of their motor skills or have a cognitive impairment. School employers shared that their ability to gather details and intercede results in alternatives to a TRO that are more productive for their staff and students. Otherwise, school employers may be exposed to greater liability as they try to adhere to contractual agreements for a student’s Individualized Educational Plan.

Administrative investigations are also critical tools for public agency employers when protecting minors under the supervision and care of their employees. As it relates to preventing childhood sexual assault and misconduct, perpetrators are not often caught in the act at a school site or facility but rather discovered through investigations conducted by the employer through either building evidence for what may lead to a criminal investigation or removing an employee before misconduct may occur. The current liability statewide for school employers alone is approximately $3 billion dollars and districts need every tool available to prevent future misconduct.

AB 340, as drafted, would tie the hands of school employers in seeking better options for student educational outcomes and taking proactive steps for general safety.

Making matters worse, employers may not even know they are acting contrary to AB 340’s restrictions by communicating with staff, because only the employee or the representative would know or could decide when a communication was made “in confidence.” This could affect day-to-day activities and critical government operations.

SUPPORT

Peace Officers’ Research Association of California (sponsor)
Association of California State Employees with Disabilities

California Association of Highway Patrolmen

California Professional Firefighters

California School Employees Association, AFL-CIO

California Teachers Association

CFT-A Union of Educators & Classified Professionals, AFT, AFL-CIO

Faculty Association of California Community Colleges

Professional Engineers in California Government

SEIU California

OPPOSITION

Association of California Healthcare Districts

Association of California School Administrators

California Association of Joint Powers

California Association of Recreation and Park Districts

California Association of School Business Officials

California Chamber of Commerce

California Contract Cities Association

California County Superintendents

California Hospital Association

California School Boards Association

California Special Districts Association

California State Association of Counties

City of Cupertino

City of Norwalk

Community College League of California

County of Fresno

Desert Water Agency

El Dorado Irrigation District

League of California Cities

Orange County Fire Authority

Public Risk Innovation, Solutions, and Management

Rural County Representatives of California

School Employers Association of California

Schools Excess Liability Fund

Small School Districts’ Association

University of California

Urban Counties of California

Valley Industry and Commerce Association

RELATED LEGISLATION

Pending Legislation: AB 1109 (Kalra, 2025) establishes an evidentiary privilege from disclosure for confidential communications between a union agent and a represented employee or represented former employee, as provided. This bill is currently in the Senate Appropriations Committee.

Prior Legislation:

AB 2421 (Low, 2024) would have prohibited specified public employers from questioning employees and employee representatives about communications between employees and employee representatives related to the representative’s representation, with an exception. AB 2421 died on suspense in the Senate Appropriations Committee.

AB 418 (Kalra, 2019) would have established an evidentiary privilege from disclosure for communications between a union agent and a represented employee or represented former employee. AB 418 died on the Senate inactive file.

AB 3121 (Kalra, 2018) would have established an evidentiary privilege from disclosure for communications between a union agent and a represented employee or represented former employee. AB 3121 died on the Senate inactive file.

AB 729 (Hernández, 2013) would have provided a union agent, as defined, and a represented employee or represented former employee a privilege of refusing to disclose any confidential communication between the employee or former employee and the union agent while the union agent is acting in their representative capacity, except as specified. AB 729 was vetoed by Governor Edmund G. Brown Jr. who wrote the following in his veto message: “I don't believe it is appropriate to put communications with a union agent on equal footing with communications with one's spouse, priest, physician or attorney. Moreover, this bill could compromise the ability of employers to conduct investigations into workplace safety, harassment and other allegations.”

PRIOR VOTES:

Senate Labor, Public Employment and Retirement Committee (Ayes 4, Noes 1)

Assembly Floor (Ayes 65, Noes 1)

Assembly Appropriations Committee (Ayes 11, Noes 0)

Assembly Public Employment and Retirement Committee (Ayes 6, Noes 0)

**************

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Lola Smallwood-Cuevas, Chair

2025 - 2026 Regular

Bill No: AB 340 Hearing Date: June 25, 2025

SUBJECT: Employer-employee relations: confidential communications

KEY ISSUE

This bill prohibits a public employer from: 1) questioning an employee or employee representative regarding representation-related communications made in confidence between the employee and employee representative; and 2) compelling disclosure of such communications to a third party. These prohibitions do not apply to a criminal investigation or supersede rights of public safety officers under investigation.

ANALYSIS

Existing law:

1. Finds that California law does not impliedly provide for an employee-union representative privilege, but that, instead, the creation of evidentiary privileges is “the province of the Legislature.” (American Airlines, Inc. v. Superior Court (2003) 114 Cal.App 4th 881, 890.)
2. Provides under National Labor Relations Board (NLRB) case law with respect to private sector employees, that when an employer compels disclosure of conversations between an employee and their union steward, it interferes with the employee’s right to engage in concerted activities and collectively bargain because allowing an employer to compel disclosure “manifestly restrains employees in their willingness to candidly discuss matters with their chosen, statutory representatives” and “inhibits [union] stewards in obtaining needed information from employees” for their representation. (Cook Paint v. Varnish Co. (1981) 258 N.L.R.B. 1230, 1232.)
3. Provides under Public Employment Relations Board (PERB) decisional administrative law that a California public employer’s legitimate interest in certain questioning of its employees when investigating an employee’s specified conduct harmed the employees’ and their unions’ protected collective bargaining right under state law, as specified. (California School Employees Association v. William S. Hart Union High School District (2018) PERB Decision No. 2595, p. 7.)
4. Provides that no person has a privilege to refuse to be a witness; to refuse to disclose any matter or to refuse to produce any writing, object, or other thing, or prevent another person from the same, unless otherwise provided by statute. (Evidence (Evid.) Code §911.)
5. Governs the admissibility of evidence in court proceedings and generally provides a privilege to refuse to testify or otherwise disclose confidential communications made in the course of certain relationships. (Evid. Code §§954, 966, 980, 994, 1014, 1033, 1034, 1035.8, 1037.5, 1038.)
6. Provides that the right of a person to claim specified privileges is waived with respect to a protected communication if the holder of the privilege has disclosed a significant part of that communication or consented to disclosure, without coercion. Existing law provides that a disclosure does not constitute a waiver where it was reasonably necessary to accomplish the purposes for which the lawyer, lawyer referral service, physician, psychotherapist, sexual assault counselor, domestic violence counselor, or human trafficking caseworker was consulted. (Evid. Code §912(a), (d).)

1. Provides that if two or more persons are joint holders of a privilege, a waiver of a right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege. In the case of the spousal privilege, the right of one spouse to claim the privilege does not affect the right of the other spouse to claim the privilege. (Evid. Code §912 (b).)
2. Provides that if a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of a recognized privileged relation, the communication is presumed to have been made in confidence, and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential. A communication does not lose its privileged character for the sole reason that it was communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication. (Evid. Code §917.)
3. Governs collective bargaining in the private sector under the federal National Labor Relations Act (NLRA) but leaves to the states the regulation of collective bargaining in their respective public sectors. (29 United State Code §151 et seq.) While the NLRA and the decisions of its National Labor Relations Board (NLRB) often provide persuasive precedent in interpreting state collective bargaining law, public employees generally have no collective bargaining rights absent specific statutory authority establishing those rights.
4. 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, among others, the Meyers-Milias-Brown Act (MMBA), which governs labor relations between local public agencies and their employees; the Education Employer-Employee Relations Act (EERA), which governs labor relations between school employers and their employees; and the Ralph C. Dills Act (Dills Act) which governs labor relations between the State and its employees. (Government Code (GC) §3500 et seq.)
5. Does not cover California’s public transit districts by a common collective bargaining statute. Instead, while some transit agencies are subject to the MMBA, other transit agencies are subject to labor relations provisions that are found in each district’s specific Public Utilities Code (PUC) enabling statute, in joint powers agreements, or in articles of incorporation and bylaws (for example, see PUC §40000 et seq.).
6. Establishes the Public Employment Relations Board (PERB), a quasi-judicial administrative agency charged with resolving disputes and enforcing the statutory duties and rights of public agency employers and employee organizations, but provides the City, and the County, of Los Angeles a local alternative to PERB oversight through the city’s Employee Relations Board (ERB) and the county’s Employee Relations Commission (ERCOM). (GC §3541)

This bill:

1. Prohibits a public employer from questioning a public employee, a representative of a recognized employee organization, or an exclusive representative regarding communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation.
2. Declares that the Legislature intends that the above prohibition be consistent with, and not in conflict with, William S. Hart Union High School District (2018) PERB Dec. No. 2595.^[1]
3. Prohibits a public employer from compelling a public employee, a representative of a recognized employee organization, or an exclusive representative to disclose to a third party, communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation.
4. Provides that this bill’s provisions do not apply to apply to a criminal investigation and do not supersede Government Code Section 3303, which provides public safety officers specified rights under the Public Safety Officers Procedural Bill of Rights Act when they are under investigation and subjected to interrogation, as specified. 

COMMENTS

1. Need for this bill?

According to the author:

“While employees commonly believe that discussions with their union representative regarding workplace matters, such as discipline or grievances, are confidential, current state law does not explicitly prohibit employers from compelling employees or their representatives to disclose such communications.”

2. Proponent Arguments

According to the Police Officers Association of California:

“This bill would codify existing decisions of the California Public Employment Relations Board which prohibit public employers from coercing union representatives and interfering in the representation of union members by questioning union representatives and members regarding communications made in confidence between an employee and an employee representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation. The prohibition on such questioning is limited to public employers, so it would not affect criminal investigations conducted by separate and independent third parties, but employers could not compel disclosure of communications or order disclosure to third parties connected to or acting on behalf of the public employer.

This bill amends collective bargaining statutes to make clear that public employers and those acting on their behalf commit an unfair labor practice by questioning union members or their labor representatives about communications between represented employees and their union representatives about matters within the scope of union representation. In short, this bill would recognize the confidentiality of those communications and preclude public employers from interfering with union representation, which benefits every public sector union and public employee in California.”

3. Opponent Arguments:

According to a coalition of several public employers including the California Schoolboards Association and the California State Association of Counties:

“In order to conduct proper investigations that uphold the public’s trust, protect against the misuse of public funds, and ensure the safety and well-being of both public employees and the public at large, it is critical that a public employer has the ability to interview all individuals with relevant information to ascertain the facts and understand the matter fully. AB 340 would increase investigation and litigation costs for the state as well as local governments and schools by creating incomplete investigations, since all appropriate employees with relevant information cannot be questioned. Costs and risks may also increase as conduct challenged as unlawful under the bill’s provisions is adjudicated before the Public Employment Relations Board (PERB). For schools, this is a drain of Proposition 98 funding.”

According to Cal Chamber and the California Hospitals Association:

“AB 340 effectively says that the employer’s interest can never justify any questions whatsoever. This is at odds with existing law and employers’ obligations to maintain safe workplaces free from misconduct or unlawful behavior. It also assumes that communications between a worker and a union representative are on par with an attorney and their client. We believe there are significant differences between those two relationships and note that attorneys have codes of conduct and ethics that govern their profession, especially where conflicts may arise in their work.”

4. Dual Referral:

The Senate Rules Committee referred this bill to the Senate Labor, Public Employment and Retirement Committee and the Senate Judiciary Committee.

5. Prior Legislation:

AB 2421 (Low, 2024) would have prohibited specified public employers from questioning employees and employee representatives about communications between employees and employee representatives related to the representative’s representation, with a specified exception. The Senate Committee on Appropriations held the bill in committee on the suspense file.

AB 418 (Kalra, 2019) would have established an evidentiary privilege from disclosure for communications between a union agent and a represented employee or represented former employee. This bill died on the Senate inactive file.

AB 3121 (Kalra, 2018) would have established an evidentiary privilege from disclosure for communications between a union agent and a represented employee or represented former employee. This bill died on the Senate inactive file.

AB 729 (Roger Hernández, 2013) would have provided a union agent, as defined, and a represented employee or represented former employee a privilege of refusing to disclose any confidential communication between the employee or former employee and the union agent while the union agent is acting in their representative capacity, except as specified. The Governor vetoed this bill.

SUPPORT

Police Officers Association of California (Sponsor)

Calegislation

California Association of Highway Patrolmen

California Association of Psychiatric Technicians

California Community College Independents

California Faculty Association

California Federation of Teachers

California Nurses Association

California Professional Firefighters

California School Employees Association

California Teachers Association

Orange County Employees Association

Professional Engineers in California Government

Santa Clara Police Officers' Association

Service Employees International Union, California

OPPOSITION

Association of California School Administrators

Association of California Healthcare Districts

California Association of Joint Powers Authorities

California Association of Recreation & Park Districts

California Association of School Business Officials

California Chamber of Commerce

California Contract Cities Association

California County Superintendents

California Hospital Association

California School Boards Association

California Special Districts Association

California State Association of Counties

Chief Executive Officers of the California Community Colleges Board

City of Cupertino

City of Norwalk

Community College League of California

Kern County Superintendent of Schools Office

League of California Cities

Public Risk Innovation, Solutions, and Management

Rural County Representatives of California

School Employers Association of California

Schools Excess Liability Fund

Small School Districts' Association

University of California

Urban Counties of California

-- END --

1. In Hart, PERB found that a school employer’s legitimate interest in investigating an employee’s on-campus nighttime activities with an employee from a different campus who was also the union steward were outweighed by its employees’ and the union’s rights under the Educational Employment Relations Act (EERA) and that the school employer interfered with those rights when the employer questioned the union steward about whether other employees had complained about the employee under investigation. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 340

Author:(Ahrens)

As Amended Ver:March 5, 2025

Majority vote

SUMMARY

Prohibits an employer from questioning an employee or employee representative regarding communications between the employee and employee representative, among other provisions.

Major Provisions

1. Prohibit a public employer from questioning any employee, a representative of a recognized employee organization, or an exclusive representative regarding communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization's representation, and from compelling disclosures to a third party, as provided.
2. Establish that its provisions are intended to be consistent, and not in conflict, with William S. Hart Union High School District (2018), PERB Decision No. 2595.
3. Does not apply to criminal investigation, and does not supersede existing law relating to investigations and interrogations of public safety officers.

COMMENTS

A Core Function of Employee Organizations: Protecting Employee Rights through Representation

The communications that this bill seeks to protect occur, primarily, when an employee is filing a grievance or facing an adverse action against their employer. In these cases, the [labor organization] agent's role in representing an employee reflects one of the core functions of the labor organization [and of organized labor, as a whole] representing an employee in a dispute with their employer. Should employees begin to question the confidentiality of their communications with labor organization agents, such fears would not only undermine the core functions of the organization, but may provide a chilling effect with regards to employees coming forward with claims of sexual harassment, civil rights violations, or other instances of workplace misconduct.

California Would Not be the First State to Enact a Similar Prohibition

Although this bill does not propose to establish a per se explicit communications evidentiary privilege similar to those that exist for the respective lawyer-client, physician-patient, psychotherapist-patient, sexual assault counselor-victim, domestic violence counselor-victim, and clergy-penitent relationships, other states, either by statute or court ruling, have effectuated a privilege for certain communications between a labor organization agent and a represented employee. For example, in 2012, the Alaska Supreme Court recognized that a privilege between union agents and employees, similar to that between lawyers and their clients, was necessary to encourage employees to "communicate fully and frankly" with their union agents. (Peterson v. State (2012) 280 P. 3d. 559, 565.) The court noted that to force disclosure of such communication, particularly in the context of grievance discussions, would have a chilling effect on the employee's willingness to come forward and speak candidly with their agents. (Id., at p. 563; pp. 565-567.)

For the same reasons, Illinois and Maryland codified the privilege between employees and their union representatives. In Maryland, labor organizations and agents of labor organizations cannot be compelled to disclose the information that is given to them by an employee so long as that information relates to an employee grievance. (Section 9-124, Maryland Courts and Judicial Proceedings Code.) The Illinois provision extends even greater protection to the union agent and employee privilege. Under Illinois state law, the privilege between the union agent and employee extends to both civil and criminal proceedings…." (735, Illinois Compiled Statutes, 5/8-803.5.) And, in Washington, an employee-union communications privilege form examination and disclosure exists.^[1]

Related PERB Decisions

In California School Employees Assn. v. William S. Hart Union High School District (2018), which is incorporated in this bill, the Administrative Law Judge found that an employer interfered with employee and union rights by asking a union steward about complaints received from bargaining unit members about another unit member. (Id., PERB Decision No. 2595.)

The National Labor Relation Act (NLRA) and decisions of the National Labor Relations Board (NLRB) often provide persuasive precedent in interpreting state collective bargaining law, and the PERB may cite NLRB decisions in making determinations regarding a California public sector grievance matter. For example, the PERB cited another one of its decisions where it stated that, "[it] is […] beyond dispute that an employer's inquiries into discussions between employees and their union representatives have a tendency to chill the protected activities of both the employees and the representatives." (County of Merced (2014) PERB Decision No. 2361-M, pp. 7-8, 10.) Further, citing Cook Paint & Varnish Co. (1981) 258 NLRB 1230, 1232, the PERB's decision in County of Merced (id.) states, "[…] as the NLRB has explained, allowing an employer to compel disclosure of the substance of conversations between an employee and [their] union steward 'manifestly restrains employees in their willingness to candidly discuss matters with their chosen, statutory representatives,' and inhibit[s] stewards in obtaining the needed information from employees. Such conduct also interferes with protected rights more generally, because it 'cast(s) a chilling effect over all of [the] employees and their stewards who seek to candidly communicate with each other over matters' concerning their employment." (Cook Paint.)

It is further noted that the aforementioned PERB decisions are not solely those where it has similarly decided. For example, it adopted a three-part test of the NLRB for determining when an employer's questions of an employee or union representative during a deposition interfere with protected labor rights of public employees (Victor Valley Union High School District (2022), PERB Decision No. 2822), and regarding certain safeguards when interviewing an employee in preparation for an arbitration hearing. (City of Commerce (2018) PERB Decision No. 2602, citing, inter alia, Johnnie's Poultry Company (1964) 146 NLRB 770, enf. den. (8th Cir. 1965) 344 F.2d 617.)

Harmonizing Public Employee Representation Rights

The provisions of this bill would be enacted within the Public Employee Communication Chapter (PECC); thus, uniformly applying its public sector employment relations provisions to local, state, K-14 education, higher education (California State University, University of California, and San Francisco College of Law [formerly, Hastings College of Law]), Judicial Council, trial court (and trial court interpreters), and public transit district employers and their employees governed by the Chapter.

While providing for and applying such uniformity, this bill seeks to ensure protection of public employee-employee representative communications for purposes of representation, and more specifically, representation as to matters within the scope of the employee representative's representation, except in criminal investigations, and investigations and interrogations of public safety officers, as provided. In doing so, this bill recognizes that unlike most professional-client relationships, the labor organization agent owes a duty not only to the employee, but also to all of the employees represented by the labor organization, and the labor organization agent may refuse to disclose the content of the communication on the grounds that disclosure could adversely affect the union agent's other represented employees.

Questioning a union agent about whether (or what) represented employees had communicated to the agent interferes with an employee's right to serve as a union agent and employee rights to confer with their union agent. A public employer's legitimate investigation into alleged wrongdoing cannot include quizzing a union agent (or employee) about the substance of their communication; thereby, deputizing the employee organization as the employer's agent for conducting disciplinary investigations.

This bill proposes to provide employees assurances that their communications would be safe, and empower employees to candidly communicate with their labor organization agent consistent with the labor organization's core functions]. Further, as with Weingarten case law rights, statutory employee organization communication rights, and the various statutes the confer organization rights to public employees, this bill may be viewed as being consistent and harmonious with employee Weingarten rights; the express legislative intents and purposes of the PECC; and, the employee's statutory and case law rights regarding representation.

It is further noted that the uniformity and harmony provided by this bill does not propose to eviscerate fully the ability of a party to file an unfair labor practice charge (ULP) with the PERB as, naturally, the facts, circumstances, and merit of each ULP filed would continue to be reviewed by the PERB for a determination as currently exists under the PECC and other employment relations statutes that it administers.

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

According to the Author

"Many employees believe discussions about their jobs with their union representative are private and cannot be shared with their employer. However, the law does not stop employers from compelling employees or their representatives to share these conversations. The goal [of this bill] is to create a standard that employee – union representative conversation are protected to create a safe space for employees to discuss their rights and concerns with their union representatives."

Arguments in Support

The Peace Officers' Research Association states, among other things, that, "[t]his bill would codify existing decisions of the California Public Employment Relations Board which prohibit public employers from coercing union representatives and interfering in the representation of union members by questioning union representatives and members regarding communications made in confidence between an employee and an employee representative in connection with representation relating to any matter within the scope of the recognized employee organization's representation. The prohibition on such questioning is limited to public employers, so it would not affect criminal investigations conducted by separate and independent third parties, but employers could not compel disclosure of communications or order disclosure to third parties connected to or acting on behalf of the public employer. The bill does not create a privilege equal to attorney/client or doctor/patient privileges. No privilege would exist in a civil or criminal proceeding where someone other than the employing agency or its agents sought evidence regarding those communications. [This] bill is modest and balanced. It prevents public agencies from interfering in union representation matters and communications in a host of circumstances, but it does not create a statutory privilege. In fact, the prohibited conduct would merely constitute an unfair labor practice to be adjudicated by PERB."

Others offer similar statements in support of this bill.

Arguments in Opposition

In part, a coalition consisting of various local government entity representatives, healthcare districts, public school boards, and public school administrators, among others, express that this bill would "add new costs and liability for the state, local governments, and schools. Here, they express that, "[t]o conduct proper investigations that uphold the public's trust, protect against the misuse of public funds, and ensure the safety and well-being of both public employees and the public at large, it is critical that a public employer has the ability to interview all individuals with relevant information to ascertain the facts and understand the matter fully. [This bill] would increase investigation and litigation costs for state as well as local governments and schools by creating incomplete investigations, since all appropriate employees with relevant information cannot be questioned. Costs and risks may also increase as conduct challenged as unlawful under the bill's provisions is adjudicated before the [PERB]. For schools, this is a drain of Proposition 98 funding." They also express that this bill is "inconsistent with the PERB decision [incorporated in this bill.]" Here, the coalition asserts that, "[this decision] engaged in a circumstantial analysis to determine whether employer questioning was prohibited or not, while weighing the employee's and employer's interests. [This bill] goes far beyond that, forgoing any circumstantial analysis or weighing of interests. It categorically prohibits questioning of confidential employee representative communications, except for narrow, limited exceptions," and "… we are not aware of evidence that the PERB is denying these interests of employees on this issue, raising the question of whether a legislative solution is necessary."

Others offer similar statement in opposition to this bill.

FISCAL COMMENTS

According to the Assembly Committee on Appropriations, this bill would result in the following:

1. One-time costs of an unknown, but significant amount, potentially in the millions of dollars, to public agencies, including the state as an employer, to update collective bargaining agreements and related policies and trainings regarding allowable employer-employee communications, including policies surrounding workplace investigations (General Fund and special fund). For example, the California Community College (CCC) Chancellor’s Office estimates one-time costs between $936,000 and $1.6 million (costs between $13,000 and $22,000 per district) to implement this prohibition across the CCC’s 72 districts (Proposition 98 General Fund).

By limiting the type of information an employer may obtain, this bill may result in public agencies also incurring additional investigation costs to prepare for an administrative or civil proceeding. To the extent this bill’s explicit prohibitions result in an increase or decrease in dispute resolution for grievances and litigation of unfair practice charges, public agencies may incur corresponding costs or savings.

1. Ongoing costs of approximately $85,000 to $110,000, to the Public Employment Relations Board (PERB) to process related unfair practice.

VOTES

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 6-0-1

YES: McKinnor, Alanis, Boerner, Elhawary, Garcia, Nguyen

ABS, ABST OR NV: Lackey

ASM APPROPRIATIONS: 11-0-4

YES: Wicks, Arambula, Calderon, Caloza, Elhawary, Fong, Mark González, Hart, Pacheco, Pellerin, Solache

ABS, ABST OR NV: Sanchez, Dixon, Ta, Tangipa

UPDATED

VERSION: March 5, 2025

CONSULTANT: Michael Bolden / P. E. & R. / (916) 319-3957 FN: 0000794

1. Washington State Legislature: https://app.leg.wa.gov/billsummary?billnumber=1187&year=2023 ↑

Date of Hearing: April 23, 2025

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 340

Author:(Ahrens) – As Amended Ver:March 5, 2025

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

SUMMARY:

This bill prohibits a public employer from questioning an employee or employee representative regarding representation-related communications made in confidence between the employee and employee representative.

This bill also prohibits a public employer from compelling disclosure of such communications to a third party. These prohibitions do not apply to a criminal investigation or certain public safety officer investigations.

FISCAL EFFECT:

1. One-time costs of an unknown, but significant amount, potentially in the millions of dollars, to public agencies, including the state as an employer, to update collective bargaining agreements and related policies and trainings regarding allowable employer-employee communications, including policies surrounding workplace investigations (General Fund and special fund). For example, the California Community College (CCC) Chancellor’s Office estimates one-time costs between $936,000 and $1.6 million (costs between $13,000 and $22,000 per district) to implement this prohibition across the CCC’s 72 districts (Proposition 98 General Fund).

By limiting the type of information an employer may obtain, this bill may result in public agencies also incurring additional investigation costs to prepare for an administrative or civil proceeding. To the extent this bill’s explicit prohibitions result in an increase or decrease in dispute resolution for grievances and litigation of unfair practice charges, public agencies may incur corresponding costs or savings.

1. Likely minor and absorbable costs to the Public Employment Relations Board (PERB), as related grievances and charges are already brought before PERB for evaluation.

COMMENTS:

1. Purpose. According to the author:

Many employees believe discussions about their jobs with their union representative are private and cannot be shared with their employer. However, the law does not stop employers from compelling employees or their representatives to share these conversations. The goal [of this bill] is to create a standard that employee-union representative conversation are protected to create a safe space for employees to discuss their rights and concerns with their union representatives.

1. Employee-Union Communications. The Public Employee Communication Chapter (PECC) provides the exclusive representative of a public employee specific rights to ensure meaningful access to, and the ability to effectively communicate with, the represented employee. However, as noted in the Assembly Public Employment and Retirement Committee’s analysis of this bill:

Although the PECC provides employee organizations such communications rights, unlike other states that have established by statute or judicial decision, an explicit privilege regarding employee-union communications, public employees in California do not have statutory communication protections with their employee organizations, which may foster apprehension and undermine trust in employee representation.

This bill does not establish an explicit evidentiary privilege for employee-union communications. Instead, this bill prohibits a public employer from questioning an employee or employee representative regarding communications made in confidence between the employee and employee representative in connection to any matter within the scope of the representation, and also prohibits a public employer from compelling disclosure of such communications to a third party.

1. Support and Opposition. This bill is sponsored by the Peace Officers’ Research Association of California, which argues this bill is “modest and balanced” because it “prevents public agencies from interfering in union representation matters and communications in a host of circumstances, but it does not create a statutory privilege.” This bill is also co-sponsored and supported by other labor organizations.

This bill is opposed by a coalition of local government employer entities, which argues this bill “would create a de facto prohibition on employers requesting a court to compel disclosure of purportedly confidential communications, which is the same outcome as if the communication was privileged in those circumstances.” This bill is also opposed by other employer groups.

1. Related Legislation. AB 1109 (Kalra) establishes an evidentiary privilege for communications between a union agent and a represented employee. AB 1109 is pending on the Assembly Floor.
2. Prior Legislation. AB 2421 (Low), of the 2023-24 Legislative Session, was similar to this bill, but did not prohibit compelled disclosure and also did not apply to an administrative disciplinary investigation. AB 2421 was held on the Senate Appropriations Committee’s suspense file.

AB 418 (Kalra), of the 2019-20 Legislative Session, and AB 3121 (Kalra), of the 2017-18 Legislative Session, were substantially similar to AB 1109. Both AB 418 and AB 3121 were ordered to the Senate Inactive File.

AB 729 (Hernández), of the 2013-14 Legislative Session, was similar to AB 1109, AB 418, and AB 3121. AB 729 was vetoed by Governor Brown, who argued:

I don’t believe it is appropriate to put communications with a union agent on equal footing with communications with one’s spouse, priest, physician or attorney. Moreover, this bill could compromise the ability of employers to conduct investigations into workplace safety, harassment and other allegations.

Analysis Prepared by: Irene Ho / APPR. / (916) 319-2081

Date of Hearing: March 19, 2025

ASSEMBLY COMMITTEE ON PUBLIC EMPLOYMENT AND RETIREMENT

Tina S. McKinnor, Chair

ABPCA Bill Id:AB 340 (

Author:Ahrens) – As Amended Ver:March 5, 2025

SUBJECT: Employer-employee relations: confidential communications

SUMMARY: Prohibits an employer from questioning an employee or employee representative regarding communications between the employee and employee representative, among other provisions. Specifically, this bill:

1. Prohibits a public employer from questioning any employee, a representative of a recognized employee organization, or an exclusive representative regarding communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation.
2. Establishes that its provisions are intended to be consistent, and not in conflict, with William S. Hart Union High School District (2018), PERB Decision No. 2595.
3. Prohibits a public employer from compelling disclosures to a third party, as provided.
4. Does not apply to criminal investigation, and does not supersede existing law relating to investigations and interrogations of public safety officers.^[1]

EXISTING LAW:

1. Provides a privilege enabling a party to refuse to testify or otherwise disclose confidential communications made in the course of certain relationships, including the following within the Evidence (Evid.) Code:
   1. The lawyer-client relationship. (Section 954.)
   2. The spousal relationship. (Section 980.)
   3. Physician-patient relationship. (Section 994.)
   4. Psychotherapist-patient relationship. (Section 1014.)
   5. Sexual assault counselor-victim relationship. (Section 1035.8.)
   6. Domestic violence counselor-victim relationship. (Section 1037.5.)
   7. Clergy-penitent relationship. (Sections 1033 and 1034.)
2. Prohibits the holder of a privilege from claiming a privilege based on one of the relations listed above if a holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to a disclosure made by anyone. (Section 912 (a) of the Evid. Code.)
3. Provides that if two or more persons are joint holders of a privilege, a waiver of a right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege. In the case of the spousal privilege, the right of one spouse to claim the privilege does not affect the right of the other spouse to claim the privilege. (Section 912 (b) of the Evid. Code.)
4. Provides that if a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of a recognized privileged relation, then the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential. Additionally, provides that a communication does not lose its privileged character for the sole reason that it was communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication. (Section 917 of the Evid. Code.)
5. Governs collective bargaining in the private sector under the federal National Labor Relations Act (NLRA) but leaves it to the states to regulate collective bargaining in their respective public sectors. (Section 151 et seq. Title 29, United States Code.)

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 some, but not all, public transit districts.
2. Expressly establishes as unlawful within various statewide public employer-employee relations statutes, certain acts or conduct by a public employer relating to employee and labor organization rights, including specified acts or conduct relating to the collective bargaining process. Similar unlawful acts also are expressly established as to employee organizations.
3. Establishes the Public Employee Communication Chapter (PECC), which gives exclusive representatives of California’s public employees specific rights designed to provide them with meaningful access, and the ability, to effectively communicate with the represented members. (Sections 3555 et seq. of the Government (Gov.) Code.) Among other statutes, the PECC is within the administrative jurisdiction of the Public Employment Relations Board (PERB).
4. Establishes the 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, employees, and employee organizations, but provides the City and County of Los Angeles a local alternative to PERB oversight. (Sections 3541 et seq. of the Gov. Code.)
5. Does not cover California’s public transit districts by a common employer-employee relations statute. Instead, while some transit districts are subject to specific employer-employee relations statutes, the majority of transit districts are subject to labor relations provisions found in each district’s specific Public Utilities Code (P.U.C.) enabling statute, joint powers agreements, or in articles of incorporation, and bylaws.

Generally, these provisions provide employees with basic rights to organization and representation, but do not define or prohibit unfair labor practices. Unlike other California public agencies and employees, public transit districts and their employees not within the jurisdiction of the PERB have no recourse to the PERB. Instead, they must rely upon the courts to remedy alleged violations. Additionally, they may be subject to provisions of the federal Labor Management Relations Act of 1947 and the 1964 Urban Mass Transit Act (modernly referred to as the Federal Transit Act).

1. Establishes the PSOPBRA, which provides procedural rights that must be accorded to such officers when they are subject to investigation or discipline. (Sections 3300 et seq. of the Gov. Code.)

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

COMMENTS:

1. Background

As previously stated under “Existing Law,” above, the PECC is established. Within this statute, the legislative findings and declarations expressly state that, “[…] the ability of an exclusive representative to communicate with the public employees it represents is necessary to ensure the effectiveness of state labor relations statutes, and the exclusive representative cannot properly discharge its legal obligations unless it is able to meaningfully communicate through cost-effective and efficient means with the public employees on whose behalf it acts.

“In most cases, that communication includes an opportunity to discuss the rights and obligations created by the contract and the role of the representative to answer questions. That communication is necessary for harmonious public employment relations […].” (Section 3555 of the Gov. Code.)

Although the PECC provides employee organizations such communications rights, unlike other states that have established by statute or judicial decision, an explicit privilege regarding employee-union communications, public employees in California do not have statutory communication protections with their employee organizations, which may foster apprehension and undermine trust in employee representation.

1. A Core Function of Employee Organizations: Protecting Employee Rights through Representation

Here, as stated verbatim in a prior analysis of a bill of similar subject, “[t]he communications that this bill seeks to protect occur, primarily, when an employee is filing a grievance or facing an adverse action against their employer. In these cases, the [labor organization] agent’s role in representing an employee reflects one of the core functions of the labor organization [and of organized labor, as a whole] representing an employee in a dispute with their employer […].

“Should employees begin to question the confidentiality of their communications with [labor organization] agents, such fears would not only undermine the core functions of the [organization], but may provide a chilling effect with regards to employees coming forward with claims of sexual harassment, civil rights violations, or other instances of workplace misconduct.”^[2]

1. Should this Bill Advance and Be Enacted, California Would Not be the First State to Do So

Although this bill does not propose to establish a per se explicit communications evidentiary privilege similar to those that exist for the respective lawyer-client, physician-patient, psychotherapist-patient, sexual assault counselor-victim, domestic violence counselor-victim, and clergy-penitent relationships, other states, either by statute or court ruling, have effectuated a privilege for certain communications between a labor organization agent and a represented employee.

For example, in 2012, the Alaska Supreme Court recognized that a privilege between union agents and employees, similar to that between lawyers and their clients, was necessary to encourage employees to “communicate fully and frankly” with their union agents.^[3] The court noted that to force disclosure of such communication, particularly in the context of grievance discussions, would have a chilling effect on the employee's willingness to come forward and speak candidly with their agents.^[4]

For the same reasons, Illinois and Maryland codified the privilege between employees and their union representatives. In Maryland, labor organizations and agents of labor organizations cannot be compelled to disclose the information that is given to them by an employee so long as that information relates to an employee grievance.^[5] The Illinois provision extends even greater protection to the union agent and employee privilege. Under Illinois state law, the privilege between the union agent and employee extends to both civil and criminal proceedings….”^[6] And, in Washington, an employee-union communications privilege form examination and disclosure exists.^[7]

1. Related PERB Decisions

In California School Employees Assn. v. William S. Hart Union High School District (2018), which is incorporated in this bill, the Administrative Law Judge found that an employer interfered with employee and union rights by asking a union steward about complaints received from bargaining unit members about another unit member.^[8]

In that case, and recall from earlier that the NLRA and decisions of the NLRB often provide persuasive precedent in interpreting state collective bargaining law, the PERB cited another one of its decisions where it stated that, “[it] is […] beyond dispute that an employer’s inquiries into discussions between employees and their union representatives have a tendency to chill the protected activities of both the employees and the representatives.” (County of Merced (2014) PERB Decision No. 2361-M, pp. 7-8, 10.) Further, citing Cook Paint & Varnish Co. (1981) 258 NLRB 1230, 1232, the PERB’s decision in County of Merced (id.) states, "[…] as the NLRB has explained, allowing an employer to compel disclosure of the substance of conversations between an employee and [their] union steward ‘manifestly restrains employees in their willingness to candidly discuss matters with their chosen, statutory representatives,’ and inhibit[s] stewards in obtaining the needed information from employees. Such conduct also interferes with protected rights more generally, because it ‘cast(s) a chilling effect over all of [the] employees and their stewards who seek to candidly communicate with each other over matters’ concerning their employment.” (Cook Paint.)

It is further noted that the aforementioned PERB decisions are not solely those where it has similarly decided. For example, it adopted a three-part test of the NLRB for determining when an employer’s questions of an employee or union representative during a deposition interfere with protected labor rights of public employees (Victor Valley Union High School District (2022), PERB Decision No. 2822), and regarding certain safeguards when interviewing an employee in preparation for an arbitration hearing. (City of Commerce (2018) PERB Decision No. 2602, citing, inter alia, Johnnie’s Poultry Company (1964) 146 NLRB 770, enf. den. (8th Cir. 1965) 344 F.2d 617.)^[9]

1. Harmonizing Public Employee Representation by an Employee Organization Relative to Employee Weingarten Rights, Rights of Communication by Employee Organizations With Public Employees, and the Various State Statutes that Confer Organization and Representation Rights to Those Employees

Questioning a union agent about whether (or what) represented employees had communicated to the agent interferes with an employee’s right to serve as a union agent and employee rights to confer with their union agent. A public employer’s legitimate investigation into alleged wrongdoing cannot include quizzing a union agent (or employee) about the substance of their communication; thereby, deputizing the employee organization as the employer’s agent for conducting disciplinary investigations.

What are “Weingarten rights?” Following the United States (U.S.) Supreme Court Ruling in NLRB v. Weingarten, Inc. (1975) 420 U.S. 251, where an employer denied an employee’s request for union representation at an interview and where the employee reasonably believed the interview might result in disciplinary action, the court reversed a judgement by the U.S. Court of Appeals for the Fifth Circuit and held that the employer violated Section 8 of the NLRA. There, the U.S. Supreme Court held that unionized employees have a right to have a union representative present during an investigatory interview. As a result of that decision, such rights have commonly been referred to as “Weingarten Rights.” These rights apply during such interviews conducted by the employer and where the employee reasonably believes may result in disciplinary action. (Emphasis added.)

It is noted that, the provisions of this bill would be enacted within Chapter 11.5, Division 4 of Title 1 of the Gov. Code, known as the PECC; thus, uniformly applying its public sector employment relations provisions to local, state, K-14 education, higher education (California State University, University of California, and San Francisco College of Law [formerly, Hastings College of Law]), Judicial Council, trial court (and trial court interpreters), and public transit district employers and their employees governed by the Chapter.^[10]

While providing for and applying such uniformity, this bill seeks to ensure protection of public employee-employee representative communications for purposes of representation, and more specifically, representation as to matters within the scope of the employee representative’s representation, except in criminal investigations, and investigations and interrogations of public safety officers, as provided. In doing so, “[…] this bill recognizes that unlike most professional-client relationships, the [labor organization] agent owes a duty not only to the employee, but also to all of the employees represented by the [labor organization],” and “… the [labor organization] agent… may…. refuse to disclose the content of [the …] communication on the grounds that disclosure could adversely affect the union agent's other represented employees. This bill would provide employees assurances that their communications would be safe, and empower employees to [candidly] communicate [with their labor organization agent consistent with the labor organization’s core functions].”^[11]

Further, as with Weingarten case law rights, statutory employee organization communication rights, and the various statutes the confer organization rights to public employees, this bill may be viewed as:

a) Consistent and harmonious with employee Weingarten rights by safeguarding employee-employee organization communications, with certain expressly-stated exceptions;

b) Consistent and harmonious with the express legislative intents and purposes of the PECC by safeguarding employee organization-employee communications relative to public employers and their employees covered by that Chapter;^[12] and,

c) Consistent and harmonious with an employee’s rights to join and participate in the activities of an employee organization, and an employee organization’s paramount legal obligation to represent its members (without employer interference).^[13]

It is further noted that the uniformity and harmony provided by this bill would not eviscerate fully the ability of a party to file an unfair labor practice charge (ULP) with the PERB as, naturally, the facts, circumstances, and merit of each ULP filed would continue to be reviewed by the PERB for a determination as currently exists under the PECC and other employment relations statutes that it administers.

1. Statement by the Author

“Many employees believe discussions about their jobs with their union representative are private and cannot be shared with their employer. However, the law does not stop employers from compelling employees or their representatives to share these conversations. The goal [of this bill] is to create a standard that employee – union representative conversation are protected to create a safe space for employees to discuss their rights and concerns with their union representatives.”

1. Comments by Supporters

The Peace Officers’ Research Association states, among other things, that, “[t]his bill would codify existing decisions of the California Public Employment Relations Board which prohibit public employers from coercing union representatives and interfering in the representation of union members by questioning union representatives and members regarding communications made in confidence between an employee and an employee representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation. The prohibition on such questioning is limited to public employers, so it would not affect criminal investigations conducted by separate and independent third parties, but employers could not compel disclosure of communications or order disclosure to third parties connected to or acting on behalf of the public employer. The bill does not create a privilege equal to attorney/client or doctor/patient privileges. No privilege would exist in a civil or criminal proceeding where someone other than the employing agency or its agents sought evidence regarding those communications. [This] bill is modest and balanced. It prevents public agencies from interfering in union representation matters and communications in a host of circumstances, but it does not create a statutory privilege. In fact, the prohibited conduct would merely constitute an unfair labor practice to be adjudicated by PERB.”

In part, the California Community College Independents state that, “[w]hen faculty members can communicate confidentially with their representatives without fear of disclosure, they are better positioned to address workplace issues that directly impact educational quality and student success. By strengthening the ability of faculty to seek guidance and representation without compromising confidentiality, [this bill] supports a more collaborative and productive labor relations environment within our community colleges. When faculty can freely discuss concerns with their representatives, issues can be addressed more efficiently and effectively, ultimately creating a better educational environment for students.”

The Orange County Employees Association states, “[t]e provisions outlined in this bill are vital for ensuring that employees can communicate openly and honestly with their union representatives without the fear of retaliation or discrimination. This confidentiality is essential not only for the protection of individual employees but also for the integrity of our labor practices. By prohibiting employers from questioning employees about their confidential communications, [this bill] reinforces the rights of employees to seek assistance and representation freely, [and] aligns with […] fostering a fair and supportive workplace, where employees feel safe to voice their concerns and seek guidance.”

1. Comments by Opponents

A coalition consisting of various local government entity representatives, healthcare districts, public school boards, and public school administrators, among others states, among other things, that, this bill would: (1) add new costs and liability for the state, local governments, and schools. Here, they express that, “[t]o conduct proper investigations that uphold the public’s trust, protect against the misuse of public funds, and ensure the safety and well-being of both public employees and the public at large, it is critical that a public employer has the ability to interview all individuals with relevant information to ascertain the facts and understand the matter fully. [This bill] would increase investigation and litigation costs for state as well as local governments and schools by creating incomplete investigations, since all appropriate employees with relevant information cannot be questioned. Costs and risks may also increase as conduct challenged as unlawful under the bill’s provisions is adjudicated before the [PERB]. For schools, this is a drain of Proposition 98 funding.” (2) [this bill] is “inconsistent with the PERB decision [incorporated in this bill.]” Here, the coalition asserts that, “[this decision] engaged in a circumstantial analysis to determine whether employer questioning was prohibited or not, while weighing the employee’s and employer’s interests. [This bill] goes far beyond that, forgoing any circumstantial analysis or weighing of interests. It categorically prohibits questioning of confidential employee representative communications, except for narrow, limited exceptions,” and “… we are not aware of evidence that the PERB is denying these interests of employees on this issue, raising the question of whether a legislative solution is necessary.”

Opponents further add that, this bill is an “expansion of a new one-sided standard,” where it “would create a de facto prohibition on employers requesting a court to compel disclosure of purportedly confidential communications, which is the same outcome as if the communication was privileged in those circumstances. This will have a significant impact on judicial and administrative proceedings.” Finally, the coalition asserts that, this bill will “[endanger] workplace safety,” and [while it] includes [narrow exceptions], many necessary investigations are still subject to the bill’s limitations, putting safety at risk [by hindering] employees who wish to voluntarily report an incident or testify in front of necessary misconduct investigations since an employer would be prohibited from certain lines of questioning,” and “limit the ability of public employers to carry out the requirements of… [Chapter 289, Statutes of 2023 (Senate Bill 553, Cortese)].

The coalition of opponents conclude by stating that, “[m]aking matters worse, employers may not even know they are acting contrary to [this bill’s] restrictions…, because only the employee or the representative would know or could decide when a communication was ‘made in confidence,, [which] could affect day-to-day activities and critical government operations.”

1. Prior or Related Legislation

Assembly Bill 2421 (Low, 2024) proposed to makes changes to existing law relating to public employer prohibited activity or conduct and public employer-employee relations. This bill was held in the Senate Committee on Appropriations.

Assembly Bill 418 (Kalra, 2019) was substantially similar to Assembly Bill 3121 (Kalra, 2018), which proposed to establish an evidentiary privilege from disclosure for communications between a union agent and a represented employee or represented former employee. This bill died on the Senate inactive file.

Assembly Bill 3121 (Kalra, 2018) proposed to establish an evidentiary privilege from disclosure for communications between a union agent and a represented employee or represented former employee. This bill died on the Senate inactive file.

Assembly Bill 729 (Roger Hernández, 2013) proposed to provide a union agent, as defined, and a represented employee or represented former employee a privilege of refusing to disclose any confidential communication between the employee or former employee and the union agent while the union agent is acting in their representative capacity, except as specified. The former Governor vetoed this bill stating that:

“I don’t believe it is appropriate to put communications with a union agent on equal footing with communications with one’s spouse, priest, physician or attorney. Moreover, this bill could compromise the ability of employers to conduct investigations into workplace safety, harassment and other allegations.”

REGISTERED SUPPORT / OPPOSITION:

Support

Peace Officers Research Association of California (Sponsor)

California Faculty Association (Co-Sponsor)

California Community College Independents

California Association of Psychiatric Technicians

Orange County Employees Association

Professional Engineers in California Government

Opposition

Association of California School Administrators

Association of California Healthcare Districts

California Association of Joint Powers Authorities

California Association of Recreation and Park Districts

California Association of School Business Officials

California Chamber of Commerce

California County Superintendents

California School Boards Association

California Special Districts Association

California State Association of Counties

League of California Cities

Public Risk Innovation, Solutions, and Management

Rural County Representatives of California

School Employers Association of California

Urban Counties of California

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

1. This bill incorporates Section 3303 of the Gov. Code by reference. Commonly deemed or referred to as the “heart” of the Public Safety Officers Procedural Bill of Rights Act (PSOPBRA), this specific section relates to notice to, and the nature of investigations and interrogations of, “public safety officers,” as this term is statutorily defined. ↑

2. See analysis of Assembly Bill 2421 (Low, 2024), Assembly Committee on Public Employment and Retirement. April 3, 2024. ↑

3. Peterson v. State (2012) 280 P. 3d. 559, 565. ↑

4. Id., at p. 563; pp. 565-567. ↑

5. Section 9-124, Maryland Courts and Judicial Proceedings Code. ↑

6. 735, Illinois Compiled Statutes, 5/8-803.5. ↑

7. Washington State Legislature: https://app.leg.wa.gov/billsummary?billnumber=1187&year=2023 ↑

8. PERB Decision No. 2595 (id.). ↑

9. In Johnnie’s Poultry Company (id.), the NLRB recognized that where an employer has a legitimate cause to inquire, it may exercise the privilege of interrogating employees on matters involving their NLRA Section 7 rights without incurring NLRA Section 8(a)(1) liability. To remove the coercive nature of the questioning, the employer must communicate the purpose of the questioning to the employee; provide assurance that no reprisal will take place; that employee participation is voluntary; and, the questioning must occur in a context free from employer hostility to union organization and not itself be coercive in nature, nor the questions exceed the necessities of legitimate purpose by prying into other union matters, eliciting information concerning an employee’s subjective state of mind, or otherwise interfering with the statutory rights of employees. ↑

10. See Section 3555.5 of the Gov. Code. ↑

11. See fn. 2. ↑

12. Section 3555.5, id. ↑

13. For example, see Sections 3500, 3503, 3506, 3506.5, 3515, 3515.5, 3519, 3524.51, 3524.56, 3524.57, 3524.71, 3543, 3543.1, 3543.5, 3565, 3571, 71630, 71631, 71633, and 71815 the Gov. Code, and Sections 28849, 28856, 28858, 102399, 102400, 102404, 102406, 100300, 100309, 98160.5, 98162, 98169, 999563, 19563.7 of the Public Utilities Code. ↑