California Labor &
Employment Law Blog
Jul 11, 2013

California Legislation Pushing Evidentiary Privilege for Employee-Union Representative Communications

Topics: New Laws & Legislation, Union-Management Relations

In 2003, the Second District Court of Appeal for California, in American Airlines, Inc. v.  Superior Court,  114 Cal.App.4th 881 (2003), refused to recognize a privilege for communications between a union representative and bargaining unit employee under the California Labor Code, the Railway Labor Act, common law privacy or any other provision.  In 2005, Illinois became the first state to enact a statute creating a privilege for such communications.  Last year, the Alaska Supreme Court in Peterson v. State, 280 P.2d 559 (Alaska 2012), created a new Alaskan common law privilege for certain communications between an employee and his/her union representative. 

The California Legislature is now attempting to overturn American Airlines, and follow Illinois by creating a statutory privilege for such communications through Assembly Bill 729.  AB 729 amends the California Evidence Code to create a privilege for confidential communications between an employee or former employee and his/her union agent that is similar to the attorney-client privilege.  AB 729 passed the full Assembly in May by almost a 2/3 majority.  Last week, the Senate Judiciary Committee voted in support of the bill 4-2.  AB 729 now moves to the Senate Appropriations Committee for consideration before being considered by the entire state Senate.  Unionized employers should play close attention to this piece of legislation.   We will continue to keep you advised on how this develops.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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